Gillmore v. Levi
| Citation | 877 N.W.2d 801 |
| Decision Date | 12 April 2016 |
| Docket Number | No. 20150321.,20150321. |
| Parties | Andrew John GILLMORE, Petitioner and Appellant v. Grant LEVI, Director of the North Dakota Department of Transportation, Respondent and Appellee |
| Court | United States State Supreme Court of North Dakota |
Thomas F. Murtha IV, Dickinson, N.D., for petitioner and appellant.
Michael T. Pitcher, Office of the Attorney General, Bismarck, N.D., for respondent and appellee.
[¶ 1] Andrew Gillmore appeals from a judgment affirming the Department of Transportation's decision to suspend his driving privileges for 91 days. Because we conclude the Department's decision is in accordance with the law, its findings of fact are supported by a preponderance of the evidence and support the conclusions of law, and Gillmore's constitutional rights were not violated, we affirm the judgment.
[¶ 2] On February 14, 2015, Gillmore was stopped by a Dickinson police officer after the officer observed him failing to use a turn signal and "fishtail[ing]" around a corner. The officer noticed Gillmore's eyes were watery and detected a strong odor of cigars coming from Gillmore's vehicle, and he asked Gillmore to sit in the patrol vehicle. While in the patrol vehicle, the officer smelled the odor of alcohol, and Gillmore admitted drinking alcohol. After failing some field sobriety tests, Gillmore was read the implied consent advisory and agreed to take an alcohol screening test. Gillmore attempted to blow into the machine five times but was unable to register a result. The officer placed Gillmore under arrest for refusal to submit to the onsite screening test and for driving under the influence of alcohol and drove him to the law enforcement center. Gillmore agreed to submit to a chemical test at the law enforcement center, and while administering the test, the officer told him "to blow as hard as he can." The test showed an alcohol concentration of .082 percent by weight, above the presumptive limit.
[¶ 3] Gillmore requested an administrative hearing to contest the Department's intention to suspend his driving privileges for having a blood alcohol content above the presumptive limit of .08 percent under N.D.C.C. § 39–08–01(1)(a). Following a hearing during which the arresting officer and Gillmore testified, the Department's hearing officer suspended Gillmore's driving privileges for 91 days. The Department denied Gillmore's petition for reconsideration. The district court affirmed the Department's decision.
[¶ 4] The Department had jurisdiction under N.D.C.C. § 39–20–05. Gillmore's appeal to the district court was timely under N.D.C.C. § 28–32–42(1). The district court had jurisdiction under N.D. Const. art. VI, § 8, and N.D.C.C. § 39–20–06. Gillmore's appeal to this Court was timely 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.
[¶ 5] Gillmore raises numerous arguments challenging the Department's suspension of his driving privileges.
[¶ 6] We review an administrative suspension of driving privileges under N.D.C.C. § 28–32–46, which for purposes of this appeal requires that we affirm the Department's decision unless:
[¶ 7] In Deeth v. Dir., N.D. Dep't of Transp., 2014 ND 232, ¶ 10, 857 N.W.2d 86, we explained:
It is well established that we must afford "great deference" to the factual determinations made by an agency when reviewing the agency's findings of fact. Haynes v. Dir., Dep't of Transp., 2014 ND 161, ¶ 6, 851 N.W.2d 172 (citing Wampler v. N.D. Dep't of Transp., 2014 ND 24, ¶ 6, 842 N.W.2d 877 ). Rather than making independent findings of fact, or substituting our judgment for that of the agency, our review is confined to determining whether " ‘a reasoning mind reasonably could have determined that the factual conclusions reached were proved by the weight of the evidence from the entire record.’ " Vanlishout [v. N.D. Dep't of Transp., 2011 ND 138, ¶ 12, 799 N.W.2d 397 ] (quoting Power Fuels, Inc. v. Elkin, 283 N.W.2d 214, 220 (N.D.1979) ). Although this Court's review is limited to the record before the administrative agency, "the district court's analysis is entitled to respect if its reasoning is sound." Obrigewitch v. Dir., N.D. Dep't of Transp., 2002 ND 177, ¶ 7, 653 N.W.2d 73. "An agency's conclusions on questions of law are subject to full review." Vanlishout, at ¶ 12 (citing Huff v. Bd. of Med. Examiners, 2004 ND 225, ¶ 8, 690 N.W.2d 221 ).
[¶ 8] Gillmore argues he did not voluntarily submit to the field sobriety tests administered by the arresting officer and the hearing officer erred in failing to make findings on this issue.
[¶ 9] The officer had reasonable grounds to believe Gillmore was under the influence of alcohol because he smelled the odor of alcohol on Gillmore and noticed his watery eyes, and Gillmore admitted to the officer that he had been drinking alcohol. The hearing officer specifically found the arresting officer "had reasonable grounds to believe Mr. Gillmore had been driving a vehicle while under the influence of intoxicating liquor." Gillmore points to no evidence in the record suggesting his consent to the field sobriety tests was involuntary. Indeed, during the hearing, Gillmore testified he complied with the officer's requests to perform field sobriety tests because "I didn't feel like I was at all doing wrong, so I just wanted to do anything he asked of me at that point in time." Whether a driver voluntarily consented to field sobriety testing was not listed as an issue for consideration by the hearing officer under the effective version of N.D.C.C. § 39–20–05(2) (2013) when Gillmore was arrested.
[¶ 10] We conclude Gillmore's argument is without merit.
[¶ 11] Gillmore argues the officer did not read him the implied consent advisory after his arrest in violation of N.D.C.C. § 39–20–01(3) (2013) and the officer's failure to do so means he was not tested in accordance with N.D.C.C. § 39–20–01.
[¶ 12] Gillmore's arrest occurred before the effective date of the 2015 legislation making inadmissible in any criminal or administrative proceeding chemical tests given to an arrested driver who has not been provided a complete chemical test implied consent advisory. See N.D.C.C. § 39–20–01(3)(b) (2015); State v. O'Connor, 2016 ND 72, ¶ 14, 877 N.W.2d 312. Here the report and notice form states Gillmore "[w]as advised by law enforcement of the implied consent advisory contained on this form." "The Department's Report and Notice form is admissible as prima facie evidence of its contents once it is forwarded to the director of the Department." Dawson v. N.D. Dep't of Transp., 2013 ND 62, ¶ 23, 830 N.W.2d 221. Although the arresting officer did not recall whether he had readvised Gillmore before the chemical test was administered, Gillmore had the burden to rebut the prima facie evidence contained in the report and notice form. See Thorsrud v. Dir., N.D. Dep't of Transp., 2012 ND 136, ¶ 10, 819 N.W.2d 483. Gillmore did not testify the officer failed to read this advisory after his arrest, and therefore he failed to rebut the officer's giving him the proper advisory. Moreover, under the law in effect at the time of Gillmore's arrest, a single recitation of the implied consent advisory could suffice as compliance with the statutory requirements. See State v. Salter, 2008 ND 230, ¶ 10, 758 N.W.2d 702, abrogated by statute as stated in O'Connor, at ¶ 11. Finally, at the time of Gillmore's arrest, N.D.C.C. § 39–20–05(2) (2013) specifically provided that "[w]hether the individual was informed that the privilege to drive might be suspended based on the results of the test is not an issue" at the administrative hearing. See also Gardner v. N.D. Dep't of Transp., 2012 ND 223, ¶¶ 9–14, 822 N.W.2d 55.
[¶ 13] Gillmore argues the implied consent advisory read to him by the officer is "misleading" because the officer "incorrectly advised him that North Dakota law requires him to submit to testing when in fact Mr. Gillmore had a statutory right to refuse to submit to a chemical test."
[¶ 14] Section 39–20–01(3), N.D.C.C. (2013), provided during the relevant time:
The law enforcement officer shall inform the individual charged that North Dakota law requires the individual to take the test to determine whether the individual is under the influence of alcohol or drugs; that refusal to take the test directed by the law enforcement officer is a crime punishable in the same manner as driving under the influence; and that refusal of the individual to submit to the test directed by the law enforcement officer may result in a revocation for a minimum of one hundred eighty days and up to three years of the individual's driving privileges.
[¶ 15] There is nothing "misleading" about this advisory. The advisory provides that state law requires an individual to take the test, but it also provides the consequences for refusing to do so. A reasonable person would be well aware of his right to refuse the test by being advised of the consequences for refusal. We have held consent to a chemical test is not coerced or rendered involuntary by a law enforcement officer's reading of this implied consent advisory that accurately informs the arrestee of the consequences for refusal, including the administrative and criminal penalties, and presents the arrestee with a choice. See, e.g., McCoy v. N.D. Dep't of Transp., 2014 ND 119, ¶ 21, 848 N.W.2d 659.
[¶ 16] We conclude the advisory is not "misleading."
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