Olson v. North Dakota Dept. of Transp. Director

• Decision Date: 27 October 1994
• Docket Number: No. 940056,940056
• Citation: 523 N.W.2d 258
• Parties: Joshua Jeffrey OLSON, Plaintiff and Appellant, v. NORTH DAKOTA DEPARTMENT OF TRANSPORTATION DIRECTOR, Defendant and Appellee. Civ.
• Court: North Dakota Supreme Court

Page 258

523 N.W.2d 258

Joshua Jeffrey OLSON, Plaintiff and Appellant, v. NORTH DAKOTA DEPARTMENT OF TRANSPORTATION DIRECTOR Defendant and Appellee.

Civ. No. 940056.

Supreme Court of North Dakota.

Oct. 27, 1994.

Darold A. Asbridge, Bismarck, for plaintiff and appellant.

Monte L. Rogneby, Asst. Atty. Gen., Bismarck, for defendant and appellee.

LEVINE, Justice.

Joshua Jeffrey Olson appeals from a district court judgment affirming a Department of Transportation decision to revoke his driver's license for one year for refusing to submit to a blood-alcohol test. We reverse and hold that a minor taken into custody for drunk driving has a qualified statutory right to have his or her parent contacted, if reasonable under the circumstances, and read the implied consent advisory, prior to administration of a chemical test.

In the early morning hours of June 29, 1993, Burleigh County Deputy Sheriff Lonnie Quam observed seventeen-year-old Joshua Olson swerving between lanes and driving erratically. Deputy Quam contacted McLean County Deputy Sheriff James Youngbird, who joined Quam in pursuit of the car. Both officers activated their red lights to stop the car. When Olson stepped out of his car, the officers observed that he had difficulty maintaining his balance, smelled of alcohol, and had slurred speech. Deputy Youngbird read Olson the implied consent advisory and the Miranda warnings and asked him to perform two field sobriety tests. Olson failed both tests and Deputy Youngbird placed Olson under arrest for driving while under the influence of alcohol.

Following the instruction of NDCC Sec. 39-20-01, infra, Deputy Youngbird asked the McLean County Sheriff's dispatcher to call Olson's parents. In addition, he asked Deputy Quam to stop by the Olson residence. Both attempts to contact Olson's parents were unsuccessful.

In the meantime, Deputy Youngbird drove Olson to the Turtle Lake hospital for a blood test. The nurse who was to administer the test would not draw Olson's blood without parental consent, so she placed a phone call to his parents. This attempt to contact Olson's parents was successful and after the nurse finished speaking with Olson's mother, Deputy Youngbird asked to speak to her. Deputy Youngbird told Olson's mother that he had Olson in custody and that Olson had been drinking and driving. He also disclosed the location of Olson's car. Deputy Youngbird did not read the implied consent advisory to Olson's mother, nor did Olson speak with his mother at that time.

After the telephone conversation, Deputy Youngbird asked Olson if he would consent to a blood test. Olson asked what would happen if he refused the test. Deputy Youngbird reread the implied consent advisory and then asked Olson again if he would submit to the blood test. Olson decided not to take the test. Deputy Youngbird then drove Olson to the McLean County Sheriff's department. When they arrived, an attorney was on the telephone waiting to speak with Olson. The attorney advised Olson to submit to a urine test and asked Deputy Youngbird to administer such a test. Youngbird did not give Olson the test because only two or three minutes remained in the permissible two-hour testing period.

An administrative license revocation hearing was held by the Department of Transportation and the hearing officer, finding that Olson had refused the chemical test, revoked his license for one year under NDCC Sec. 39-20-04. The district court upheld the revocation. On appeal, Olson argues that Deputy Youngbird's failure to read the implied consent advisory to his mother vitiates his refusal to take a chemical test. We agree.

The Administrative Agencies Practice Act, NDCC ch. 28-32, governs an appeal from an administrative hearing officer's decision to revoke a driver's license. Erickson v. Director, N.D. Dept. of Transp., 507 N.W.2d 537 (N.D.1993). We review the findings of the administrative agency rather than the district court decision. Samdahl v. Director, N.D. Dept. of Transp. 518 N.W.2d 714 (N.D.1994). "The interpretation of a statute is a question of law, fully reviewable by this court." Kallhoff v. N.D. Workers' Comp. Bureau, 484 N.W.2d 510, 512 (N.D.1992). We will reverse an agency decision that is not in accordance with the law. See Bieber v. Director, N.D. Dept. of Transp., 509 N.W.2d 64 (N.D.1993).

Our objective when construing a statute is to ascertain the intent of the legislature, and we accomplish this by giving the language of the statute its "plain, ordinary, and commonly understood meaning." Stewart v. Ryan, 520 N.W.2d 39, 45 (N.D.1994); State v. Pippen, 496 N.W.2d 50 (N.D.1993). We presume that the legislature knows the law and is aware of previously enacted statutes, State v. Clark, 367 N.W.2d 168 (N.D.1985), and thus we attempt to harmonize conflicts among them. BASF Corporation v. Symington, 512 N.W.2d 692 (N.D.1994).

The statute at issue in this appeal is NDCC Sec. 39-20-01. The relevant portion of that statute says:

"When a child is taken into custody for violating section 39-08-01 or an equivalent ordinance, the law enforcement officer shall diligently attempt to contact the child's parent or legal guardian to explain the cause for the custody and the implied consent chemical testing requirements. Neither the law enforcement officer's efforts to contact, nor any consultation with, a parent or legal guardian may be permitted to interfere with the administration of chemical testing requirements under this chapter." ¹

The parties agree that the officer satisfied the diligence requirement of the statute by both telephoning the Olson home and sending Deputy Quam to the Olson home. If, after the exercise of diligence by law enforcement personnel, Olson's parent had not been contacted, our analysis would end, because the statute would be satisfied. However, in this case, we must decide whether, once telephonic contact with the parent actually was made, Officer Youngbird had a statutory obligation to read the implied consent requirements to Olson's mother.

A plain reading of the statute discloses a two-fold purpose for contacting the child's parent: to explain the cause for custody and to explain the implied consent testing requirements. It is clear that the legislature intended a parent to be involved in the child's decision to take or refuse a chemical test. This kind of parental involvement is consistent with the idea that parents are entitled to direct and guide their children's decision-making. See In the Interest of R.D.S., 259 N.W.2d 636 (N.D.1977). However, the statute requires more than parental guidance and input. It also requires that a parent receive essential information from law enforcement representatives about the reason for the child's confinement and the specifics of the implied consent chemical-testing requirements. The legislature has decided that an informed parent is a necessary prerequisite for a wise advisor. The extent of the right of parental involvement, however, is limited. Neither the effort to reach a parent nor the successful contact of a parent may be used to "interfere with the administration of chemical testing." But, once an officer timely contacts a child's parent, whether fortuitously or by design, the officer must comply with the statute's directives.

The question then is what remedy does a child have when the child's parent is not advised as the statute requires? Olson argues that the failure to advise his mother should invalidate his refusal to submit to a blood test. This case is remniscent of Kuntz v. State Highway Comm'r, 405 N.W.2d 285 (N.D.1987), in which a majority of this court held that a person arrested for DUI has a limited statutory right to consult with counsel prior to electing whether or not to submit to a chemical test. ² Because Kuntz was not afforded a reasonable opportunity to consult with counsel, we held that his failure to submit to the test was not a refusal. Id.

The Department of Transportation argues that a parent is not the equivalent of an attorney and therefore, failure to comply with the statute should not make Olson's "refusal" ineffective. However, children are recognized as members of a special class of citizens who may require additional legal protection. In Interest of B.S., 496 N.W.2d 31 (N.D.1993). Our law requires parental assistance prior to a valid waiver of a juvenile's other important statutory rights. State v Ellvanger, 453 N.W.2d 810 (N.D.1990). A juvenile's right to counsel under the Uniform Juvenile Court Act [UJCA], Sec. 27-20-26(1), may not be waived by a child not represented by a parent or guardian. In Interest of D.S., 263 N.W.2d 114 (N.D.1978). Parents are also entitled to notice of hearings involving their children under the UJCA. NDCC Secs. 27-20-22, 27-20-34. We believe the legislature has identified yet another situation in which juveniles need the protection and assistance of their parents either to contact an attorney for them or to give them advice on whether or not to take a chemical test. If the statutory directives are not complied with, then a child's subsequent failure to take a chemical test is not a refusal for purposes of section 39-20-01.

The Department of Transportation also argues that compliance with section 39-20-01 should not be considered at the administrative hearing because NDCC Sec. 39-20-05(3) expressly says that "[w]hether the person was informed that the privilege to drive would be revoked or denied for refusal to submit to the test or tests is not an issue [at the administrative hearing]." This argument suggests a potential conflict between sections 39-20-05(3) and 39-20-01; however, we believe these two provisions are readily harmonized.

The legislature has deemed a parent's counsel a necessary protection for a juvenile to decide whether or not to take a chemical test. When that assistance is denied due to the officer's failure to follow the statute, it deprives the parent of her or his legislative...