Pokrzywinski v. Director, 20140043.

• Decision Date: 24 June 2014
• Docket Number: No. 20140043.,20140043.
• Citation: 847 N.W.2d 776,2014 ND 131
• Parties: Derek POKRZYWINSKI, Appellant v. DIRECTOR, NORTH DAKOTA DEPARTMENT OF TRANSPORTATION, Appellee.
• Court: North Dakota Supreme Court

847 N.W.2d 776

2014 ND 131

Derek POKRZYWINSKI, Appellant

v.DIRECTOR, NORTH DAKOTA DEPARTMENT OF TRANSPORTATION, Appellee.

No. 20140043.

Supreme Court of North Dakota.

June 24, 2014.

Appeal from the District Court of Walsh County, Northeast Judicial District, the Honorable M. Richard Geiger, Judge.

Robert J. Woods, Forest River, ND, for appellant.

Michael T. Pitcher, Assistant Attorney General, Office of Attorney General, Bismarck, ND, for appellee.

McEVERS, Justice.

[¶ 1] Derek Pokrzywinski appeals the district court judgment affirming a North Dakota Department of Transportation hearing officer's decision suspending his driving privileges for three years. We affirm.

I

[¶ 2] On June 15, 2013, Highway Patrol Officer Anthony DeJean arrested Pokrzywinski for driving under the influence (“DUI”) and, subsequently, issued a Report and Notice form, to suspend Pokrzywinski's driving privileges. Pokrzywinski requested and received an administrative hearing, which occurred on July 9, 2013.

[¶ 3] On June 15, 2013, at approximately 8:30 p.m., Pokrzywinski was in a single vehicle motorcycle crash. On Deputy Richard Sherlock's arrival, he observed Pokrzywinski on a backboard being loaded on an ambulance stretcher. While in the ambulance, Deputy Sherlock asked Pokrzywinski what happened, and Pokrzywinski responded that “he had a couple beers, hit a pothole and lost control of his motorcycle.” While talking to Pokrzywinski, Deputy Sherlock observed a strong odor of alcohol coming from Pokrzywinski's mouth and Pokrzywinski had bloodshot, watery eyes. Based on his training, Deputy Sherlock concluded Pokrzywinski was impaired. Deputy Sherlock observed Pokrzywinski's hand was wrapped in gauze and his head was bleeding. Deputy Sherlock's medical training led him to believe Pokrzywinski's head injury was not affecting his ability to communicate. Deputy Sherlock observed the road had potholes.

[¶ 4] Highway Patrol Officer Matthew Peschong testified that he spoke with an eye witness. The eye witness reported the crash after observing it. The eye witness also claimed he had attempted to stop Pokrzywinski from driving because he believed Pokrzywinki was intoxicated and had been told by Pokrzywinski that he had been traveling at 90 m.p.h. prior to the crash. The length of the crash made it obvious to Officer Peschong that Pokrzywinski was traveling at considerable speed. After receiving the information from the eye witness and Deputy Sherlock, Officer Peschong concluded Pokrzywinski was under the influence of alcohol during the crash and directed Officer DeJean to meet Pokrzywinski at Altru hospital in Grand Forks to arrest him for DUI and request Pokrzywinski submit to a blood test. Officer Peschong did not receive any reports that Pokrzywinski had lost consciousness. Officer Peschong heard on a broadcast, which he assumed was emergency personnel, that Pokrzywinski was alert and awake at the scene of the crash.

[¶ 5] Before arresting Pokrzywinski, Officer DeJean was informed by Officer Peschong that (1) an odor of alcohol was detected coming from Pokrzywinski at the scene of the crash, (2) the eye witness had observed Pokrzywinski drinking in excess, (3) Pokrzywinski had been traveling at a high rate of speed when he crashed, and (4) the location of the crash. Officer DeJean was waiting at Altru hospital when Pokrzywinski arrived and detected an odor of alcohol as he passed. Ambulance personnel stated Pokrzywinski had been conscious the entire time in the ambulance. At approximately 10:38 p.m., Officer DeJeanwas allowed to speak to Pokrzywinski. Officer DeJean again detected an odor of alcohol coming from Pokrzywinski, and Pokrzywinski claimed he had consumed two beers. Officer DeJean observed Pokrzywinski had been in a serious motorcycle crash because Pokrzywinski was connected to several machines, had bandaged extremities, and a bandaged head. Officer DeJean arrested Pokrzywinski and asked him to submit to a blood test. Pokrzywinski asked if he had to submit. Officer DeJean explained he could not offer legal advice, and Pokrzywinski refused to submit to the blood test. Officer DeJean did not advise Pokrzywinski of the North Dakota implied consent law because more than two hours had elapsed since the crash. Officer DeJean issued a Report and Notice form to suspended Pokrzywinski's driving privileges and placed it with Pokrzywinski's personal belongings in his hospital room. In the probable cause section of the Report and Notice form, Officer DeJean checked boxes indicating “crash” and “odor of alcoholic beverage” and noted that Pokrzywinski “admitted consuming 2 beers.” After leaving Pokrzywinski's room, Officer DeJean was directed by his superior to advise Pokrzywinski of the implied consent law because it could still be in effect even though more than two hours had elapsed since the crash. Officer DeJean returned to Pokrzywinski's hospital room to request, for the second time, Pokrzywinski submit to a blood test and advised him of the implied consent law. Pokrzywinski again refused to submit to the blood test. During this second encounter, Officer DeJean observed Pokrzywinski was very sedated and Pokrzywinski's communication was mumbled, but Officer DeJean was able to discern Pokrzywinski said no.

[¶ 6] Pokrzywinski testified the last thing he remembered on June 15, 2013, was slowing down due to the potholes and gravel. Pokrzywinski then remembered waking up in the hospital the morning of June 16, 2013. Pokrzywinski believed his lack of memory of the crash and subsequent events was due to head trauma. Pokrzywinski testified that he consumed two beers prior to the crash, he did not remember how fast he was driving but usually goes about 45 to 55 m.p.h. on that road, and the crash was caused by poor road conditions. Pokrzywinski's injuries included “head was scalped back five inches,” lost pinkie finger on his right hand, severe skin loss on ring finger on his right hand, broken collar bone, and road rash on other parts of his body. Pokrzywinski explained he does not know if he suffered a concussion, but indicated the doctor who treated his hand noted loss of consciousness, and the ambulance personnel told him they had to keep waking him because he was losing consciousness. Pokrzywinski required surgery, a plate on his collar bone, a skin graft on his right hand, and approximately 30 staples on his head. Pokrzywinski testified he would have consented to the blood test if he had his normal cognitive abilities and known his license would be revoked for three years. Pokrzywinski and his mother testified she had to consent to medical treatment on his behalf. Pokrzywinski's mother testified Pokrzywinski could not physically make a mark on the medical forms and was refusing treatment. She had been an emergency medical technician and it was “obvious” to her that Pokrzywinski's injuries were “very traumatic.” Pokrzywinski's mother believed Pokrzywinski was not thinking straight because he could not answer her questions or say much more than “I'm okay, mom” and he stared straight up at the ceiling.

[¶ 7] The hearing officer concluded the Report and Notice form included sufficient information regarding the arresting officer'sreasonable grounds to believe Pokrzywinski had been driving a vehicle while under the influence of intoxicating liquor, and Pokrzywinski effectively refused consent to the first request for a blood test. The hearing officer noted that the implied consent advisory was not necessary, under N.D.C.C. § 39–20–05(3), for purposes of the administrative hearing. The hearing officer did not consider Pokrzywinski's second response to be either a refusal nor a consent to the blood test. The hearing officer suspended Pokrzywinski's driving privileges for three years. Pokrzywinski appealed the hearing officer's decision and the district court affirmed the hearing officer's decision. Pokrzywinski appealed.

[¶ 8] On appeal, Pokrzywinski argues the director lacked the authority to revoke his driving privileges because the Report and Notice form did not show the law enforcement officer had reasonable grounds to believe he had been driving a vehicle under the influence of intoxicating liquor, and he could not effectively refuse consent because of his injuries.

II

[¶ 9] Our review of an administrative decision to suspend a driver's license is governed by N.D.C.C. ch. 28–32, the Administrative Agencies Practice Act. Potratz v. N.D. Dep't of Transp., 2014 ND 48, ¶ 7, 843 N.W.2d 305. “This Court reviews the administrative agency's decision when a district court's review of an administrative agency's decision is appealed.” Id.

“The review is limited to the record before the administrative agency. We review the administrative hearing officer's decision and give

deference to the administrative hearing officer's findings. We do not, however, make independent findings or substitute our judgment for that of the agency. Rather, we determine only whether a reasoning mind reasonably could have concluded the findings were supported by the weight of the evidence from the entire record. We defer to the hearing officer's opportunity to judge the credibility of witnesses.”

Id. (quoting Pesanti v. N.D. Dep't of Transp., 2013 ND 210, ¶ 7, 839 N.W.2d 851). “Whether the facts meet the legal standard, rising to the level of probable cause or reasonable and articulable suspicion, is a question of law fully reviewable on appeal.” Aamodt v. N.D. Dep't of Transp., 2004 ND 134, ¶ 12, 682 N.W.2d 308. An administrative hearing officer's decision must be affirmed, 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...