Jesser v. N.D. Dep't of Transp.

• Decision Date: 12 December 2019
• Docket Number: No. 20190101,20190101
• Citation: 936 N.W.2d 102
• Parties: Corey Joseph JESSER, Appellee v. NORTH DAKOTA DEPARTMENT OF TRANSPORTATION, Appellant
• Court: North Dakota Supreme Court

936 N.W.2d 102

Corey Joseph JESSER, Appellee

v.NORTH DAKOTA DEPARTMENT OF TRANSPORTATION, Appellant

No. 20190101

Supreme Court of North Dakota.

Filed December 12, 2019

Chad R. McCabe, Bismarck, ND, for appellee.

Michael T. Pitcher, Attorney General’s Office, Bismarck, ND, for appellant.

Crothers, Justice.

[¶1] The North Dakota Department of Transportation appeals from a judgment reversing the decision of an administrative hearing officer revoking Corey Joseph Jesser’s driving privileges for 180 days. We reverse the district court judgment and reinstate the administrative hearing officer’s decision revoking Jesser’s license.

I

[¶2] On June 17, 2018, law enforcement dispatch received multiple calls about a hit and run accident involving a black SUV. Dispatch advised Morton County Deputy Peterson that one caller heard what sounded like a moving car dragging vehicle parts. Peterson responded and saw a trail of fluid near the accident site which led around the block to the described vehicle.

[¶3] Jesser was standing outside the vehicle on the sidewalk near the passenger side. The vehicle had noticeable front-end and passenger-side damage. Peterson administered field sobriety tests and advised Jesser of the implied consent advisory for an onsite screening test and asked Jesser to submit to the test. Jesser refused to take the test and was arrested for driving under the influence. Peterson gave Jesser the post-arrest implied consent advisory and asked Jesser if he would submit to a chemical breath test. After Jesser hesitated answering, Peterson asked Jesser if he would like to call an attorney. Jesser stated he would, but he did not know who to call.

[¶4] Peterson escorted Jesser to the Burleigh Morton Detention Center and asked the jailers for a telephone and telephone book. Peterson advised Jesser he would get access to a telephone and telephone book. Jesser responded stating, "I don't know who to call." Jesser did not receive a telephone and telephone book, nor did he again mention speaking to an attorney. He did not submit to the chemical breath test.

[¶5] A Report and Notice was issued to Jesser. It notified him of the Department’s intent to revoke his driving privileges. Jesser requested a hearing. The hearing officer found Peterson had reason to believe Jesser was involved in a traffic accident as the driver, Jesser’s body contained alcohol, and he refused to submit to the onsite screening test. The hearing officer found Peterson had reasonable grounds to believe Jesser was driving or in actual physical control of a vehicle while under the influence of intoxicating liquor. The hearing officer found Jesser was arrested and refused to submit to the chemical breath test. The hearing officer found the limited statutory right to an attorney was not violated. Jesser’s license was revoked for 180 days based on his refusal of the onsite screening test and chemical test. Jesser appealed and the district court reversed. The Department appeals.

II

[¶6] "The Administrative Agencies Practice Act, N.D.C.C. ch. 28-32, governs our review of an administrative decision suspending or revoking a driver’s license." Crawford v. Director, N.D. Dep't of Transp. , 2017 ND 103, ¶ 3, 893 N.W.2d 770. 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 provided under N.D.C.C. § 28-32-46, which requires a district court to affirm an agency order unless it finds any of the following:

"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."

N.D.C.C. § 28-32-46.

III

[¶7] The Department argues the district court erred by reversing the administrative hearing officer’s decision because the Department had authority to revoke Jesser’s license under N.D.C.C. § 39-20-14 for refusal to take the onsite screening test. Jesser responds that the district court properly reversed the Department’s revocation because he requested and was denied the opportunity to speak to counsel. Jesser also argues the holding in Kuntz that the "failure to take the test is not a refusal upon which to revoke his license under Chapter 39-20, N.D.C.C." should be extended to a person’s ability to cure refusal of the onsite screening test. Kuntz v. State Highway Comm'r , 405 N.W.2d 285, 290 (N.D. 1987). We conclude the last issue is dispositive because, even if Jesser’s limited right to counsel was violated after his arrest, he had no right to counsel prior to arrest when he refused to take the onsite screening test.

[¶8] Section 39-20-04, N.D.C.C., authorizes revocation of driving privileges upon refusal to submit to a test under section 39-20-01 or 39-20-14. Roberts v. North Dakota Dept. of Transp. , 2015 ND 137, ¶ 6, 863 N.W.2d 529. Section 39-20-01, N.D.C.C., states¹ :

"1. Any individual 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, or urine for the purpose of determining the alcohol concentration or presence of other drugs, or combination thereof, in the individual’s blood, breath, or urine....

2. The test or tests must be administered at the direction of a law enforcement officer only after placing the individual ... under arrest and informing that individual that the individual 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."

[¶9] Section 39-20-14, N.D.C.C., states:

"1. Any individual who operates a motor vehicle upon the public highways of this state is deemed to have given consent to submit to an onsite screening test or tests of the individual’s breath for the purpose of estimating the alcohol concentration in the individual’s breath upon the request of a law enforcement officer who has reason to believe that the individual committed a moving traffic violation or was involved in a traffic accident as a driver, and in conjunction with the violation or the accident the officer has, through the officer’s observations, formulated an opinion that the individual’s body contains alcohol."

[¶10] "[R]efusal of the screening test can be cured by consenting to take the chemical test after arrest." City of Mandan v. Leno , 2000 ND 184, ¶ 15, 618 N.W.2d 161 ; N.D.C.C. § 39-20-14. Section 39-20-14(4), N.D.C.C., states, "the director must not revoke an individual’s driving privileges for refusing to submit to a screening test requested under this section if the individual provides a sufficient breath, blood, or urine sample for a chemical test requested under section 39-20-01 for the same incident."

[¶11] Jesser did not take the chemical test after he was arrested. Therefore, he did not cure his prior refusal as outlined in N.D.C.C. § 39-20-14.

IV

[¶12] Jesser argues if the statutory opportunity to consult with an attorney before deciding whether to submit to a chemical test has been deprived, then the statutory opportunity to cure the refusal of the onsite screening test also has been deprived. The Department argues the Kuntz principle has not been and should not be extended to a person’s ability to cure the refusal of the onsite screening test. We agree with the Department.

[¶13] Whether the statutory right to counsel before chemical testing under N.D.C.C. § 39-20-01 impacts the right to cure under N.D.C.C. § 39-20-14 is a question of first impression for this Court. We review this legal question de novo. State v. Gasal , 2015 ND 43, ¶ 6, 859 N.W.2d 914.

[¶14] In Kuntz v. State Highway Comm'r , Kuntz was arrested after field sobriety tests. No onsite screening test was administered. 405 N.W.2d 285, 286 (N.D. 1987). The arresting deputy asked Kuntz to take a chemical breath test and informed him refusal of the test would result in a revocation of his driver’s license. Id. This Court held "if an arrested person asks to consult with an attorney before deciding to take a chemical test, he must be given a reasonable opportunity to do so if it does not materially interfere with the administration of the test. If he is not given a reasonable opportunity to do so under the circumstances, his failure to take the test is not a refusal upon which to revoke his license under Chapter 39-20, N.D.C.C." Id. at 290.

[¶15] We have applied Kuntz to N.D.C.C. § 39-20-01. See generally In re R.P. , 2008 ND 39, 745 N.W.2d 642 ; Evans v. Backes , 437 N.W.2d 848 (N.D. 1989). Kuntz only considered refusal of a test after an arrest and did not consider failure to take the onsite screening test. However, we have not expanded the ability to cure a refusal based on the deprivation to consult with an attorney as outlined in Kuntz and we decline to extend Kuntz to N.D.C.C. § 39-20-14.

[¶16] The limited statutory right of a defendant to consult with an attorney before taking a chemical test attaches only after arrest. N.D.C.C. § 29-05-20 ; City of Mandan v. Leno , 2000 ND 184, ¶ 1, 618 N.W.2d 161. We reject the argument that a post-arrest limited statutory right to counsel creates a pre-arrest right because...