Smestad v. Ellingson

• Decision Date: 16 November 1971
• Docket Number: No. 8727,8727
• Parties: Gilbert A. SMESTAD, Petitioner and Appellant, v. Orlando V. ELLINGSON, Director of Safety Responsibility Division, representing Walter R. Hjelle, State Highway Commissioner, Respondent. Civ.
• Court: North Dakota Supreme Court

Page 799

191 N.W.2d 799

Gilbert A. SMESTAD, Petitioner and Appellant, v. Orlando V. ELLINGSON, Director of Safety Responsibility

Division, representing Walter R. Hjelle, State

Highway Commissioner, Respondent.

Civ. No. 8727.

Supreme Court of North Dakota.

Nov. 16, 1971.

Syllabus by the Court

1. Any person who operates a motor vehicle upon the public highways of this State shall be deemed to have given his consent to tests of his blood, breath, saliva, or urine for the purpose of determining the alcohol content of his blood.

2. Where the officer has probable cause for making an arrest for driving while under the influence of intoxicating liquor, and the driver is placed under arrest and thereafter refuses to submit to a Breathalyzer test, the Highway Commissioner is justified in revoking his driver's license.

Farhart, Rasmuson & Olson, Minot, for petitioner and appellant.

Joseph A. Vogel, Jr., Sp. Asst. Atty. Gen., Bismarck, for respondent.

STRUTZ, Chief Justice, on reassignment.

The petitioner was involved in an intersectional accident. The investigating officer did not see the accident, but in observing him at the scene of the accident noted that petitioner's speech was slurred, that he walked in an unsteady manner, that he had difficulty in responding to the officer's questions, that his eyes were glazed and bloodshot, and that he had a strong odor of alcohol about him. The officer thereupon placed the petitioner under arrest for operating a motor vehicle while intoxicated and took him to the police station. At the station, the petitioner was advised of his constitutional rights. He then was given certain tests such as walking, turning and walking back, coin tests, a finger-to-nose test, and a balance test. On the finger-to-nose test, the petitioner completely missed his nose with both his right hand and his left hand. His walking was unsure. He then was asked to submit to a Breathalyzer test and was told of the consequences if he should refuse. The petitioner, however, did refuse to submit to the Breathalyzer test. When his refusal was reported to the Safety Responsibility Division of the State Highway Department, an order was entered revoking his driver's license for a period of six months.

The case against the petitioner for driving while under the influence came on for hearing and was dismissed by the court on motion of the petitioner's attorney, without any hearing. The petitioner thereupon requested the Safety Responsibility Division of the State Highway Department to revoke its order suspending his license and requested an administrative hearing, as provided for under the law. Such hearing was held and resulted in the entry of an order sustaining the order of revocation of his license. The petitioner thereupon requested judicial review by the district court. The district court, after hearing, affirmed the order of revocation of license, and this appeal was taken from that order, the petitioner demanding trial de novo in this court.

There are three issues which must be decided on this appeal:

1. Did the officer who arrested the petitioner for driving while under the influence have probable cause to believe that the petitioner was guilty of that offense?

2. If there was probable cause for the arrest, was the petitioner placed under arrest before he was requested to submit to a Breathalyzer test?

3. Did the petitioner, in fact, refuse to take such test?

Section 39--20--01, North Dakota Century Code, as amended, provides that any person who operates a motor vehicle upon the public highways of the State shall be deemed to have given his consent to tests of his blood, breath, saliva, or urine for the purpose of determining the alcohol content of his blood. The Act further provides that the arresting officer shall determine which of the tests shall be used.

This court has held that where a highway user refuses to submit to such tests, the Highway Commissioner is justified in revoking his driver's license because of such refusal. Timm v. State, 110 N.W.2d 359 (N.D.1961). The law, however, requires that before the officer may administer the tests for alcohol content of blood, the suspect must be placed under lawful arrest, since it provides:

'* * * The test or tests shall be administered at the direction of a law enforcement officer only after placing such person * * * under arrest and informing him that he is or will be charged with the offense of driving or being in actual physical control of a vehicle upon the public highways while under the influence of intoxicating liquor. * * * ' Sec. 39--20--01, N.D.C.C.

In the case before us, the record clearly discloses that after the accident had occurred, the officer who was called to investigate it observed the petitioner's conduct, noted the strong odor of alcohol, and informed the petitioner that he was under arrest for driving while intoxicated. The conduct of the petitioner following the...