Leclair v. Sorel

• Decision Date: 06 December 2018
• Docket Number: No. 20180155,20180155
• Citation: 920 N.W.2d 306
• Parties: Dustin Alan LECLAIR, Appellee v. Thomas SOREL, Director, Department of Transportation, Appellant
• Court: North Dakota Supreme Court

920 N.W.2d 306

Dustin Alan LECLAIR, Appellee
v.
Thomas SOREL, Director, Department of Transportation, Appellant

No. 20180155

Supreme Court of North Dakota.

Filed December 6, 2018

Lee M. Grossman, Fargo, N.D., for appellee.

Douglas B. Anderson, Assistant Attorney General, Bismarck, N.D., for appellant.

Tufte, Justice.

920 N.W.2d 308

¶1] The North Dakota Department of Transportation appeals from a district court judgment reversing the Department's decision to suspend Dustin Alan LeClair's driving privileges. The Department argues the district court erred in reversing its decision to suspend LeClair's license because the officer's recitation of the implied consent advisory, which excluded the word "punishable," substantially complied with N.D.C.C. § 39-20-01(3)(a). We reverse the district court's judgment and reinstate the Department's decision to suspend LeClair's driving privileges.

I

[¶2] On November 27, 2017, a West Fargo police officer made contact with LeClair after seeing a car being driven with "extremely bright lights." The officer observed LeClair had bloodshot eyes and slurred speech, and a strong odor of alcohol was coming from the vehicle. The officer administered field sobriety tests, which indicated LeClair was impaired. LeClair consented to an onsite screening test that revealed a blood alcohol level above the legal limit.

[¶3] LeClair was arrested for driving under the influence and taken to the Cass County jail. At the jail the officer read an incomplete implied consent advisory to LeClair before administering an Intoxilyzer chemical breath test. The officer advised that refusal to submit to a chemical breath test was "a crime in the same manner as driving under the influence." The officer's advisory failed to include the word "punishable" as written in N.D.C.C. § 39-20-01(3)(a) ("a crime punishable in the same manner as driving under the influence").

[¶4] At the administrative hearing LeClair objected to admission of the Intoxilyzer test results, arguing the implied consent advisory was incomplete. The hearing officer overruled the objection and suspended LeClair's driving privileges for two years. LeClair appealed the decision to the district court, which reversed the Department's decision and reinstated LeClair's driving privileges.

II

[¶5] The Administrative Practices Act governs the review of a decision to suspend driving privileges. We must affirm an agency's decision unless:

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

[920 N.W.2d 309

by a hearing officer or an administrative law judge.

N.D.C.C. § 28-32-46.

[¶6] Great deference is afforded to the agency's factual determinations:

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. A hearing officer's evidentiary rulings are reviewed under the abuse of discretion standard. A hearing officer abuses her discretion when she acts in an arbitrary, unreasonable, or capricious manner or misapplies or misinterprets the law. Questions of law are fully reviewable.

Filkowski v. Director, North Dakota Dep't of Transp. , 2015 ND 104, ¶ 6, 862 N.W.2d 785 (internal quotations and citations omitted).

III

¶7] The Department argues LeClair's Intoxilyzer test results are admissible under N.D.C.C. § 39-20-01(3)(b) because the implied consent advisory read by the officer substantially complied with the advisory in N.D.C.C. § 39-20-01(3)(a). We conclude the advisory given to LeClair was substantively complete and in compliance with the statutory requirement; thus, the test results were admissible.

[¶8] An arresting officer may request an individual to submit to chemical testing to determine alcohol concentration via blood, breath, or urine. Under N.D.C.C. § 39-20-01(3)(b), a breath test is not admissible in an administrative proceeding if the arresting officer fails to inform the individual as required under N.D.C.C. § 39-20-01(3)(a). Under N.D.C.C. § 39-20-01(3)(a) :

The law enforcement officer shall inform the individual charged that North Dakota law requires the individual to take a chemical test to determine whether the individual is under the influence of alcohol or drugs and that refusal of the individual to submit to a test directed by the law enforcement officer may result in a revocation of the individual's driving privileges for a minimum of one hundred eighty days and up to three years. In addition, the law enforcement officer shall inform the individual refusal to take a breath or urine test is a crime punishable in the same manner as driving under the influence . If the officer requests the individual to submit to a blood test, the officer may not inform the individual of any criminal penalties until the officer has first secured a search warrant.

(Emphasis added.)

[¶9] The implied consent statute directs that specific information must be communicated by law enforcement to an individual arrested for driving under the influence. N.D.C.C. § 39-20-01(3)(a) ; State v. O'Connor , 2016 ND 72, ¶¶ 8, 11, 877 N.W.2d 312. See also O'Connor , at ¶ 18 (VandeWalle, C.J., concurring specially) ("the Legislature has established a bright line and the statutes leave no room for this Court to engage in a determination of legislative intent or whether or not a person was disadvantaged by an incorrect or incomplete advisory"). Unless all substantive information in N.D.C.C. § 39-20-01(3)(a) is communicated to the driver, chemical test results are not admissible. N.D.C.C. § 39-20-01(3)(b). The consequence of an officer's failure to convey the required information is exclusion of the test results. Id. ; O'Connor , at ¶ 14 ; State v. Bohe , 2018 ND 216, ¶ 16, 917 N.W.2d 497 ; Schoon v. North Dakota Dep't of Transp.

, 2018 ND 210, ¶ 19, 917 N.W.2d 199.

[¶10] Here, the Department argues the officer's advisory complied with

[920 N.W.2d 310

N.D.C.C. § 39-20-01(3)(a) despite his omission of the word "punishable." We agree and conclude that the advisory given here was substantively complete and that "refusal to take a breath or urine test is a crime [ ] in the same manner as driving under the influence" satisfies the statutory command that the "individual charged" (the driver) has been "inform[ed]" as required by N.D.C.C. § 39-20-01(3)(a).

¶11] We have never held that § 39-20-01(3)(a) must be read word-for-word—only that the substance must be conveyed in a way "reasonably calculated to be comprehensible to the driver." State v. Ayala , 2017 ND 126, ¶¶ 8-9, 894 N.W.2d 865 (recognizing that reading the advisory ordinarily will be sufficient). Although the preferred approach is to use the language of subdivision 3(a), it is only for substantive omissions that we have concluded an advisory was deficient. O...