Salvaggio v. North Dakota Dept. of Transp.

• Decision Date: 12 November 1991
• Docket Number: No. 910206,910206
• Citation: 477 N.W.2d 195
• Parties: Anthony James SALVAGGIO, Petitioner and Appellant, v. NORTH DAKOTA DEPARTMENT OF TRANSPORTATION, Respondent and Appellee. Civ.
• Court: North Dakota Supreme Court

Page 195

477 N.W.2d 195

Anthony James SALVAGGIO, Petitioner and Appellant, v. NORTH DAKOTA DEPARTMENT OF TRANSPORTATION, Respondent and Appellee.

Civ. No. 910206.

Supreme Court of North Dakota.

Nov. 12, 1991.

R. Scott Stewart, Langdon, for petitioner and appellant.

Elaine Ayers, Asst. Atty. Gen., Bismarck, for respondent and appellee.

VANDE WALLE, Justice.

Anthony James Salvaggio appealed from a district court judgment affirming the administrative suspension of Salvaggio's motor vehicle operator's license. We affirm.

Dana King, North Dakota Highway Patrolman, was called early on January 10, 1991, to a rural intersection near Langdon, where a vehicle was reported to be "stuck in the ditch." When King arrived, he found a pickup nosed into the ditch. The engine was running and a man was asleep in the passenger side of the bench seat. Salvaggio was at the rear of the pickup attempting to put chains on the left rear tire.

King asked Salvaggio to join him in his vehicle in order to escape the frigid weather. King asked Salvaggio what happened. Salvaggio replied that he had been driving and had misjudged the corner while making a turn. Detecting the smell of alcohol on Salvaggio, King administered field-sobriety and on-site alcohol screening tests to Salvagio, who failed the tests. King arrested Salvaggio for being in actual physical control of a vehicle while under the influence of alcohol. A blood-alcohol test showed Salvaggio had a blood-alcohol concentration of 0.19% by weight.

The Director of the Department of Transportation began administrative proceedings to revoke Salvaggio's license. A hearing officer suspended Salvaggio's license after determining that: King had arrested Salvaggio upon reasonable grounds to believe that he was in actual physical control of a vehicle while under the influence of intoxicating liquor; Salvaggio had been fairly tested; and the results of the test showed Salvaggio had a blood-alcohol concentration in excess of the statutory limit, 0.10% by weight. NDCC Sec. 39-08-01(1)(a).

Salvaggio appealed to the district court, which affirmed the administrative decision. This appeal followed.

Salvaggio's arguments in this appeal relate solely to the question of whether the arresting officer had reasonable grounds to believe Salvaggio was in actual physical control of a vehicle in violation of section 39-08-01, NDCC.

" 'Reasonable grounds' to believe an offense has been committed is synonymous with 'probable cause.' Moser v. North Dakota State Highway Comm'r, 369 N.W.2d 650 (N.D.1985). Probable cause exists when the facts and circumstances within a police officer's knowledge and of which the officer has reasonably trustworthy information are sufficient to warrant a person of reasonable caution in believing that an offense has been or is being committed. Id. at 652-53. See also City of Langdon v. Delvo, 390 N.W.2d 51 (N.D.1986)." Wolf v. North Dakota Highway Comm'r, 458 N.W.2d 327, 329 (N.D.1990).

Salvaggio contends that the fact King did not witness Salvaggio behind the wheel of the vehicle precludes, as a matter of law, a finding that King had reasonable grounds for making the arrest. "A driver has 'actual physical control' of his car when he has real (not hypothetical), bodily restraining or directing influence over, or domination and regulation of, its movements of machinery." State v. Ghylin, 250 N.W.2d 252, 254 (N.D.1977) [quoting Commonwealth v. Kloch, 230 Pa.Super. 563, 327 A.2d 375, 383 (1974) ]. In Ghylin, the Court reviewed the conviction of a driver whom the arresting officer saw getting out of the driver's door of a stuck vehicle. The Court affirmed the conviction in spite of the defendant's argument the fact that the ignition was off and the transmission was not engaged negated the possibility that he was actually in physical control of the vehicle. Ghylin admitted driving into the ditch and attempting to get his vehicle out of the ditch. Both admissions indicated Ghylin's real directing influence, domination and regulation of the vehicle's movement. The Court did not distinguish between the defendant's admission that he was trying to remove the vehicle from the ditch and his admission that he had driven the vehicle into the ditch. In fact, Ghylin's testimony that he was attempting to free the vehicle when the officer arrived countered his...