Fossum v. N. Dakota Dep't of Transp., 20130310.
Citation | 843 N.W.2d 282,2014 ND 47 |
Decision Date | 11 March 2014 |
Docket Number | No. 20130310.,20130310. |
Court | United States State Supreme Court of North Dakota |
Parties | Scott FOSSUM, Appellee v. NORTH DAKOTA DEPARTMENT OF TRANSPORTATION, Appellant. |
OPINION TEXT STARTS HERE
Justin J. Vinje, Bismarck, N.D., for appellee.
Michael T. Pitcher, Assistant Attorney General, Office of Attorney General, Bismarck, N.D., for appellant.
[¶ 1] The Department of Transportation appeals from a district court judgment reversing the decision of a hearing officer to suspend the driving privileges of Scott Fossum. As this Court held in City of Bismarck v. Hoffner, 379 N.W.2d 797 (N.D.1985), and State v. Abrahamson, 328 N.W.2d 213 (N.D.1982), the implied-consent requirements of N.D.C.C. § 39–20–01 do not apply when an individual voluntarily consents to a chemical test. We therefore reverse the judgment and reinstate the hearing officer's decision to suspend Fossum's driving privileges.
[¶ 2] On January 12, 2013, Bismarck Police Officer Colt Bohn issued a report and notice form to Fossum. On the form, Officer Bohn stated he stopped Fossum's vehicle for speeding but ended up arresting Fossum because an odor of alcoholic beverages emanated from the vehicle and Fossum failed field sobriety and screening tests. Officer Bohn certified he issued Fossum a temporary operator's permit at that time. Fossum was twenty years old at the time of arrest, and he requested an administrative hearing before a hearing officer of the Department.
[¶ 3] At the hearing, Officer Bohn testified that after stopping Fossum and noting the odor of alcohol emanating from within the vehicle, he asked Fossum whether he had had anything to drink. He testified Fossum initially said no, but when asked a second time, Fossum indicated he had been drinking. Officer Bohn testified he asked Fossum to get out of the vehicle and walk back to his patrol car. He testified that once back at his patrol car, he performed a Horizontal Gaze Nystagmus (“HGN”) test upon Fossum. Officer Bohn testified that after receiving four of six clues from the HGN test and deeming the test to be a fail, he read Fossum the “North Dakota Implied Consent” advisory and asked whether he would be willing to submit to a field breath test called an S–D5, to which Fossum agreed. Officer Bohn testified he received a “breath alcohol content” of .079 and placed Fossum under arrest for DUI, minor zero tolerance. Officer Bohn testified that he used the words “minor zero tolerance” when he arrested Fossum and that minor zero tolerance is a DUI arrest of a person under the age of 21 with a blood alcohol content under .08. Officer Bohn testified Fossum “was read the North Dakota Implied Consent a second time,” and he asked Fossum if he would be willing to take an Intoxilyzer test at the police station. He testified Fossum consented to taking the Intoxilyzer test. Officer Bohn testified the Intoxilyzer testing was completed within two hours of the time he saw Fossum driving and “[a]t 0224 hours, a breath result of .085 percent” was found.
[¶ 4] The hearing officer found:
Officer Bohn requested field tests; as the night was cold, he did not request outdoor tests such as the walk and turn test or the one leg stand test. Results were unsatisfactory or failing on the horizontal gaze nystagmus test. Results were .079 on the S–D5 on-site screening test, but the evidence presented was unclear with regard to whether the S–D5 test was done before or after Mr. Fossum was formally detained under the zero tolerance law; the S–D5 results will therefore not be considered here. Officer Bohn detained Mr. Fossum for DUI under the zero tolerance law, but the evidence presented did not establish that Officer Bohn also arrested Mr. Fossum for a violation of NDCC 39–08–01 or equivalent ordinance. Scott Fossum consented to breath testing to determine his alcohol concentration. Intoxilyzer testing was done in accordance with the state toxicologist's approved method, with results showing an alcohol concentration of .08% within two hours of the time Mr. Fossum was driving.
[¶ 5] The hearing officer relied on the result of the Intoxilyzer test and suspended Fossum's license for 91 days. Fossum petitioned for reconsideration, but the hearing officer denied the petition. Fossum appealed the decision to the district court, alleging violation of basic and mandatory requirements of N.D.C.C. § 39–08–01.
[¶ 6] On appeal, the district court reversed, concluding the results of the Intoxilyzer test should not have been considered. The district court stated, “Even though [the hearing officer] found that ‘the evidence presented did not establish that Officer Bohn also arrested Mr. Fossum for a violation of NDCC 39–08–01 [DUI statute] or equivalent ordinance,’ she considered the results of the Intoxilyzer test, which showed Fossum's blood alcohol concentration exceeded the .02% for a person under twenty-one....” The district court held the hearing officer's findings of fact and conclusions of law contradicted the evidence presented to her and contradicted N.D.C.C. § 39–20–01, which provided at the time of Fossum's arrest: “The test ... must be administered at the direction of a law enforcement officer only after placing the person ... under arrest and informing that person that the person is or will be charged with the offense of driving ... while under the influence of intoxicating liquor....” The court concluded that the results of Fossum's Intoxilyzer test should not have been considered and that without this evidence, the hearing officer would have been unable to find Fossum's blood concentration exceeded .02 percent. The court entered judgment reversing the hearing officer and reinstating Fossum's driving privileges.
[¶ 7] Fossum properly requested an administrative hearing under N.D.C.C. § 39–20–05. The hearing officer had jurisdiction under N.D.C.C. § 39–20–05. Fossum's notice of appeal from the Department's decision to the district court was timely under N.D.C.C. § 28–32–42(1). See DuPaul v. N.D. Department of Transportation, 2003 ND 201, ¶ 6, 672 N.W.2d 680 ( ). The district court had jurisdiction under N.D. Const. art. VI, § 8, and N.D.C.C. § 28–32–42. Fossum filed a timely notice of appeal from the district court judgment under N.D.C.C. § 28–32–49. This Court has jurisdiction under N.D. Const. art. VI, §§ 2 and 6, and N.D.C.C. § 28–32–49.
[¶ 8] The Department argues the hearing officer's decision to suspend Fossum's driving privileges should be reinstated because he submitted to the chemical test.
[¶ 9] Our deferential standard of review for administrative proceedings is well-established:
Under N.D.C.C. § 28–32–49, we review an appeal from a district court judgment in an administrative appeal in the same manner as allowed under N.D.C.C. § 28–32–46, which requires a district court to affirm an order of an administrative agency unless it finds:
1. The order is not in accordance with the law.
2. The order is in violation of the constitutional rights of the appellant.
3. The provisions of this chapter have not been complied with in the proceedings before the agency.
4. The rules or procedure of the agency have not afforded the appellant a fair hearing.
5. The findings of fact made by the agency are not supported by a preponderance of the evidence.
6. The conclusions of law and order of the agency are not supported by its findings of fact.
7. The findings of fact made by the agency do not sufficiently address the evidence presented to the agency by the appellant.
8. The conclusions of law and order of the agency do not sufficiently explain the agency's rationale for not adopting any contrary recommendations by a hearing officer or an administrative law judge.
Schock v. N.D. Department of Transportation, 2012 ND 77, ¶ 11, 815 N.W.2d 255. Power Fuels, Inc. v. Elkin, 283 N.W.2d 214, 220 (N.D.1979).
[¶ 10] The district court reversed the hearing officer, concluding her findings of fact and conclusions of law contradicted the evidence presented to her and contradicted the statutory language of N.D.C.C. § 39–20–01. Section 39–20–01, N.D.C.C., at the time of Fossum's encounter with Officer Bohn, provided:
Any person who operates a motor vehicle on a highway or on public or private areas to which the public has a right of access for vehicular use in this state is deemed to have given consent, and shall consent, subject to the provisions of this chapter, to a chemical test, or tests, of the blood, breath, saliva, or urine for the purpose of determining the alcohol, other drug, or combination thereof, content of the blood.... The test or tests must be administered at the direction of a law enforcement officer only after placing the person ... under arrest and informing that person that the person is or will be charged with the offense of driving or being in actual physical control of a vehicle upon the public highways while under the influence of intoxicating liquor, drugs, or a combination thereof. For the purposes of this chapter, the taking into custody of ... a person under twenty-one years of age satisfies the requirement of an arrest.
[¶ 11] In City of Bismarck v. Hoffner, 379 N.W.2d 797, 798–99 (N.D.1985), this Court interpreted N.D.C.C. § 39–20–01 as not applying in cases where an individual voluntarily consents to chemical testing:
In Abrahamson we held that the implied-consent statute is inapplicable where an individual voluntarily consents to the taking of a blood specimen and thus makes admissible the results of the consentual [sic]...
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