Herrman v. Director

• Citation: 2014 ND 129,847 N.W.2d 768
• Decision Date: 17 July 2014
• Docket Number: No. 20130338.,20130338.
• Parties: Joseph P. HERRMAN, Appellant v. DIRECTOR, NORTH DAKOTA DEPARTMENT OF TRANSPORTATION, Appellee.
• Court: United States State Supreme Court of North Dakota

847 N.W.2d 768
2014 ND 129

Joseph P. HERRMAN, Appellant
v.
DIRECTOR, NORTH DAKOTA DEPARTMENT OF TRANSPORTATION, Appellee.

No. 20130338.

Supreme Court of North Dakota.

June 24, 2014.
Rehearing Denied July 17, 2014.

[847 N.W.2d 771]

Thomas F. Murtha IV, Dickinson, ND, for appellant.

Douglas Bruce Anderson, Assistant Attorney General, Office of Attorney General, Bismarck, ND, for appellee.

CROTHERS, Justice.

[¶ 1] Joseph P. Herrman appeals a district court judgment affirming a North Dakota Department of Transportation (“Department”) decision revoking his driving privileges for one year. We affirm, concluding sufficient probable cause existed to arrest Herrman without considering his onsite screening test and Herrman had a reasonable opportunity to consult with an attorney. We decline to address Herrman's argument implied consent laws represent an unconstitutional condition.

I

[¶ 2] At 8:00 p.m. on May 30, 2013, police received a report of a vehicle having difficulty maintaining its lane on Interstate 94. Stark County Sheriff's Department Deputy Shane Holtz was in the area and waited for the vehicle to approach. As the vehicle passed him, Deputy Holtz confirmed the license matched the reported vehicle. Deputy Holtz observed the vehicle cross the lines dividing the lanes and miss the driving lane while exiting the Interstate. Deputy Holtz initiated a traffic stop at 8:13 p.m.

[¶ 3] Deputy Holtz smelled alcohol and observed Herrman's eyes were watery and bloodshot. Herrman admitted to drinking. Herrman had difficulty balancing while exiting his vehicle to perform field sobriety tests. Herrman failed the horizontal gaze nystagmus test, walk-and-turn test and one-legged-stand test. Deputy Holtz read Herrman the implied consent advisory. At 8:20 p.m., Herrman agreed to take an onsite screening test, showing his blood-alcohol content was .196. Herrman was arrested for driving a vehicle while under the influence of intoxicating liquor and was taken to a law enforcement center.

[¶ 4] Deputy Holtz gave Herrman a phone book and telephone, and Herrman contacted his attorney. At 8:50 p.m., Herrman indicated to Deputy Holtz he contacted his attorney. Deputy Holtz again read the implied consent advisory

[847 N.W.2d 772]

and requested that Herrman take a chemical breath test. Herrman said he was waiting for his attorney to call back, which Deputy Holtz testified is a commonly used ploy to postpone the test. Deputy Holtz advised Herrman he needed to decide whether to take the test. Herrman refused to consent to further testing. Deputy Holtz escorted Herrman to the jail. Immediately after Deputy Holtz returned from escorting Herrman to the jail, he received a telephone call from Herrman's attorney. The attorney stated he was speaking on behalf of Herrman, who was willing to submit to a chemical test only if Deputy Holtz obtained a warrant. Deputy Holtz neither sought a warrant nor performed a second breath test. Deputy Holtz indicated he was finished with Herrman's case at 9:06 p.m. and was available for another call.

[¶ 5] A Department hearing officer concluded Herrman was driving a vehicle under the influence of intoxicating liquor in violation of section 39–08–01, N.D.C.C. The Department revoked his driver's license for one year for refusing to submit to a chemical breath test. Herrman appealed the Department's decision. The district court affirmed the Department, holding Herrman's arrest and Deputy Holtz's request for Herrman to perform the chemical breath test at the law enforcement center were lawful. The district court held North Dakota's implied consent laws do not unconstitutionally and coercively require drivers to surrender their right to be free from unreasonable searches in exchange for receiving driving privileges. The district court did not address Herrman's argument he was denied his qualified statutory right to consult with an attorney before deciding whether to submit to testing. Herrman appealed.

II

[¶ 6] The Administrative Agencies Practice Act, N.D.C.C. ch. 28–32, governs the review of an administrative agency decision to suspend a person's driving privileges. Painte v. Dir., Dep't of Transp., 2013 ND 95, ¶ 6, 832 N.W.2d 319. We review the agency's decision on appeal from the district court. Id. However, “the district court's analysis is entitled to respect if it is sound.” Morrow v. Ziegler, 2013 ND 28, ¶ 6, 826 N.W.2d 912. This Court employs a deferential standard of review for administrative proceedings:

“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.”

[847 N.W.2d 773]

Fossum v. N.D. Dept. of Transp., 2014 ND 47, ¶ 9, 843 N.W.2d 282 (citation omitted). “[W]e do not make independent findings of fact or substitute our judgment for that of the agency. We determine only 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.” Id. (citation omitted). “When an ‘appeal involves the interpretation of a statute, a legal question, this Court will affirm the agency's order unless it finds the agency's order is not in accordance with the law.’ ” Harter v. N.D. Dep't of Transp., 2005 ND 70, ¶ 7, 694 N.W.2d 677 (citation omitted). We review “a claimed violation of a constitutional right [ ] de novo.” Martin v. N.D. Dep't of Transp., 2009 ND 181, ¶ 5, 773 N.W.2d 190 (citation omitted).

III

[¶ 7] Herrman argues the Department hearing officer erred in the conclusions of law because the onsite screening test performed prior to Herrman's arrest was a warrantless search and no exception to the warrant requirement existed. Herrman contends that the Department's decision violated his constitutional rights under U.S. Const. amend. IV and N.D. Const. art. I, § 8, and that the results of the onsite screening test should be excluded. Herrman asserts the reading of the implied consent advisory was coercive and North Dakota's implied consent law violates the unconstitutional conditions doctrine by conditioning the grant of driving privileges on relinquishment of the constitutional right to be secure from unreasonable searches.

[¶ 8] Individuals operating a motor vehicle in...