Schulke v. Panos

• Decision Date: 02 March 2020
• Docket Number: No. 20190328,20190328
• Citation: 940 N.W.2d 303
• Parties: Carter Allan SCHULKE, Appellee v. William T. PANOS, Interim Director, Department of Transportation, Appellant
• Court: North Dakota Supreme Court

940 N.W.2d 303

Carter Allan SCHULKE, Appellee

v.William T. PANOS, Interim Director, Department of Transportation, Appellant

No. 20190328

Supreme Court of North Dakota.

Filed March 2, 2020

Jesse Walstad (argued), Bismarck, ND, and Luke T. Heck (on brief) and Drew J. Hushka (on brief), Fargo, ND, for appellee.

Douglas B. Anderson, Assistant Attorney General, Bismarck, ND, for appellant.

Jensen, Chief Justice.

[¶1] The North Dakota Department of Transportation (NDDOT) appeals from a district court’s judgment reversing an administrative hearing officer’s decision to revoke Schulke’s driving privileges for a period of three years. The NDDOT argues that the district court erred in reversing the administrative hearing officer’s determination that Schulke refused an alcohol related screening test in violation of N.D.C.C. § 39-20-14(1). We reverse the district court’s judgment and reinstate the decision of the administrative hearing officer.

I

[¶2] The facts of this case are not in dispute. On May 11, 2019, following a high-speed pursuit, Schulke was stopped by law enforcement, arrested for fleeing, driving under suspension, reckless endangerment, and possession of drug paraphernalia, handcuffed, and placed in a patrol car. While Schulke was seated in the backseat of the patrol car the arresting officer smelled alcohol emanating from Schulke. Because of safety concerns and Schulke’s behavior, the arresting officer did not conduct field sobriety tests or request an alcohol related screening test at the location of the stop.

[¶3] At the correctional center, the arresting officer requested Schulke perform field sobriety tests. Schulke refused to perform the field sobriety tests. Schulke was then read the implied consent warning for the screening test and asked to submit to a screening test pursuant to N.D.C.C. § 39-20-14(1). Schulke refused to submit to the screening test. Schulke was then read the implied consent advisory for an Intoxilyzer breath test pursuant to N.D.C.C. § 39-20-01. Schulke refused to take the breath test, became extremely uncooperative, and was eventually placed in confinement. Schulke was informed that in addition to the other charges, he was being arrested for "DUI Refusal."

[¶4] Schulke requested an administrative hearing to challenge the suspension of his driving privileges. The administrative hearing officer determined that Schulke refused to submit to the screening test and the Intoxilyzer breath test. However, the administrative hearing officer revoked Schulke’s driving privileges by referencing only the refusal of the screening test.

[¶5] Schulke appealed the administrative hearing officer’s decision arguing he could not be determined to have refused to submit to the screening test because the test was not administered at the location of the stop. Schulke asserts the term "onsite" as used in N.D.C.C. § 39-20-14(1), with respect to determining a refusal to submit to a screening test, requires the request to submit to the screening test be made at the location of the stop. The district court reversed the administrative hearing officer’s decision after finding the administrative hearing officer’s conclusion that Schulke had refused an "onsite" screening test was erroneous as a matter of law because the test occurred at a location other than the location of the traffic stop. The NDDOT initiated this appeal from the judgment of the court.

II

[¶6] The NDDOT argues the administrative hearing officer correctly held Schulke had refused a screening test in violation of N.D.C.C. § 39-20-14. "This Court reviews administrative agency decisions to suspend driving privileges under N.D.C.C. ch. 28-32 and accords great deference to the agency’s decision." Alvarado v. N.D. Dep't of Transp. , 2019 ND 231, ¶ 6, 932 N.W.2d 911. This Court must affirm an order by an administrative agency unless the order is not in accordance with the law. Guthmiller v. Director, N.D. Dep't of Transp. , 2018 ND 9, ¶ 6, 906 N.W.2d 73 (citing Hamre v. N.D. Dep't of Transp. , 2014 ND 23, ¶ 6, 842 N.W.2d 865 ).

[¶7] Schulke does not dispute the arresting officer had sufficient reason to request him to submit to a screening test. Schulke argues the arresting officer did not request a screening test in compliance with N.D.C.C. § 39-20-14(1) because the unambiguous language of the statute requires the test to be conducted "onsite" which he equates to at the location of the stop.

[¶8] The interpretation of a statute is a question of law and is fully reviewable on appeal. Guthmiller v. Director, N.D. Dep't of Transp. , 2018 ND 9, ¶ 6, 906 N.W.2d 73. This Court’s primary purpose when interpreting a statute is to determine legislative intent. Herman v. Herman , 2019 ND 248, ¶ 8, 934 N.W.2d 874. "When reviewing statutory provisions, we attempt to give meaning to every word, phrase, and sentence." State v. Comes , 2019 ND 290, ¶ 7, 936 N.W.2d 114 ( State v. Kostelecky , 2018 ND 12, ¶ 8, 906 N.W.2d 77 ). "A statute is ambiguous when it is susceptible to differing, but rational, meanings." Guthmiller , at ¶ 8 (quoting Doyle ex rel. Doyle v. Sprynczynatyk , 2001 ND 8, ¶ 10, 621 N.W.2d 353 ). "When a provision at issue is unambiguous, we look to the plain language of the statute to ascertain its meanings." State v. Comes , 2019 ND 290, ¶ 7, 936 N.W.2d 114 (citing N.D.C.C. § 1-02-05 ). If possible, this Court will construe statutes on the same subject to harmonize them and to give full force and effect to the legislature’s intent. State v. Higgins , 2004 ND 115, ¶ 13, 680 N.W.2d 645 (quoting Gratech Co., Ltd. v. Wold Eng'g, P.C., 2003 ND 200, ¶ 12, 672 N.W.2d 672 ). When reviewing statutes relating to the same subject matter, we construe the statutes to give effect to both. Id.

[¶9] "The North Dakota Century Code authorizes two separate tests, each for a specific purpose under N.D.C.C. §§ 39-20-01 and 39-20-14." Roberts v. N.D. Dep't of Transp. , 2015 ND 137, ¶ 11, 863 N.W.2d 529. Section 39-20-04, N.D.C.C., authorizes the revocation of a motorist’s driving privileges when they refuse to submit to the preliminary screening test under N.D.C.C. § 39-20-14. Id. Section 39-20-14(1) and (2), N.D.C.C., govern when an officer may request a motorist to submit to a screening test and read as follows:

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 a violation under section 39-08-01 or an equivalent offense, 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.

2. An individual may not be required to submit to a screening test or tests of breath while at a hospital as a patient if the medical practitioner in immediate charge of the individual’s case is not first notified of the proposal to make the requirement, or objects to the test or tests on the ground that such would be prejudicial to the proper care or treatment of the patient.

[¶10] In N.D.C.C. § 39-20-14, the first reference to a "screening test" appears in subsection 1 and is preceded by the word "onsite." That is the only use of the word "onsite" within N.D.C.C. § 39-20-14. There are six subsequent references to "screening test" within subsections 2, 3, and 4 of N.D.C.C. § 39-20-14 that are not modified by the word "onsite." Despite the use of the term "onsite" within subsection 1, when reviewing N.D.C.C. § 39-20-14 in its entirety, we conclude all of the subsections are unambiguously referring to the same test, regardless of whether it is referred to as an "onsite" screening test as provided in subsection 1 or the six subsequent references to just "screening test" in the following subsections.

[¶11] The dispositive question in this case is whether the use of the word "onsite" in subsection 1 of N.D.C.C. § 39-20-14 must be interpreted as requiring the screening test to be conducted at the location of the stop as advocated by Schulke. We are guided by our rules of statutory instruction which include a requirement to construe statutes on the same subject to harmonize both statutes, to give full force and effect to the legislature’s intent. State v. Higgins , 2004 ND 115, ¶ 13, 680 N.W.2d 645. This Court reviews statutes relating to the same subject matter in a light allowing this Court to give effect to both. Id.

[¶12] Immediately following subsection 1 and its singular reference to "onsite" is a directive within subsection 2 on how to conduct screening tests if the individual has been admitted to a hospital as a patient. It limits a request for a screening test of a patient at a hospital by requiring notification of the medical practitioner in immediate charge of the patient and allowing the medical practitioner to object to the testing on the ground it would be prejudicial to the proper care or treatment of the patient. Subsection 2 is not written as an exception to screening tests only being allowed at the location of the traffic stop, but places limitations on screening tests at a particular location away from the location of the stop.

[¶13] Schulke’s interpretation of N.D.C.C. § 39-20-14 to limit the scope of implied consent to screening testing to the location of the stop would eliminate any need for subsection 2. If implied consent only applied to the location of the traffic stop, there would be no consent implied to any request at a hospital, and subsection 2 would have no purpose. We must reconcile the two statutory provisions in a manner that gives effect to both provisions. We can reconcile the two provisions by interpreting subsection 1 as establishing that drivers are deemed to...