Throlson v. Backes

• Decision Date: 21 February 1991
• Docket Number: No. 900232,900232
• Citation: 466 N.W.2d 124
• Parties: Steven Michael THROLSON, Appellee, v. Richard J. BACKES, Director, North Dakota Department of Transportation, Appellant. Civ.
• Court: North Dakota Supreme Court

Page 124

466 N.W.2d 124

Steven Michael THROLSON, Appellee, v. Richard J. BACKES, Director, North Dakota Department of Transportation, Appellant.

Civ. No. 900232.

Supreme Court of North Dakota.

Feb. 21, 1991.

Robert E. Lane (argued), Asst. Atty. Gen., Atty. Gen. Office, Bismarck, for appellant.

LEVINE, Justice.

The Director of the North Dakota Department of Transportation appeals from a district court judgment reversing the Department's suspension of Steven Throlson's driver's license. We affirm.

On December 2, 1989, Deputy Sheriff Raymond Dingeman observed Throlson's vehicle traveling with its headlights turning on and off. The vehicle stopped by the side of the road and Deputy Dingeman stopped his patrol car to render assistance. Deputy Dingeman approached the vehicle and talked to Throlson, who had been alone in the vehicle. Noting that Throlson's eyes were bloodshot, that there was a strong odor of alcohol and that Throlson's speech was slurred, Dingeman asked to see Throlson's driver's license. When Throlson said he didn't have his driver's license, Dingeman ran a check and learned that Throlson's license was under suspension. Dingeman then informed Throlson that he "was going to have to come with me to the jail because he was driving under suspension." Throlson was not informed that he was under arrest for driving under the influence of alcohol.

While driving to the jail, Dingeman asked Throlson if he would perform field sobriety tests when they arrived, and Throlson indicated that he would not. Upon arriving at the jail, Dingeman read Throlson the implied consent advisory and then asked if Throlson would submit to a blood test. Throlson responded in profane terms that he would not give a blood test. Throlson had still not been advised that he was under arrest for driving under the influence.

Dingeman's testimony about what happened next provides the background for the dispute on appeal. Dingeman testified:

"Well, then the jail ... I told the jailer to, you know, book him in for DUS and DUI. I waited about ten minutes or so and I come back up and I asked Steve again, I said, 'Will you give me a blood test?' At that time he replied no. He just said no. And he was booked in the jail at that time."

Throlson requested and received an administrative hearing. The hearing officer found that Throlson had been arrested and had refused the test in violation of Section 39-20-01, N.D.C.C. Throlson's license was suspended for two years.

Throlson appealed to the district court. The district court concluded that Throlson had not been informed that he was under arrest for DUI, as required by Section 39-20-01, N.D.C.C., and that, accordingly, there had been no legally effective request for a test by the officer or refusal by Throlson. The district court reversed the agency decision and the Director has appealed.

Our review of administrative agency decisions is governed by Section 28-32-19, N.D.C.C., and is limited to consideration of the following questions: (1) Are the findings of fact supported by a preponderance of the evidence? (2) Are the conclusions of law sustained by the findings of fact? (3) Is the agency decision supported by the conclusions of law? E.g., Lorenzen v. State Highway Commissioner, 401 N.W.2d 526, 527-528 (N.D.1987). In determining whether the agency's findings of fact are supported by a preponderance of the evidence, the applicable standard is whether a reasoning mind could reasonably have determined that the facts or conclusions were supported by the weight of the evidence. E.g., Evans v. Backes, 437 N.W.2d 848, 849 (N.D.1989).

The scope of an administrative hearing on a refusal to submit to testing is limited by Section 39-20-05(3), N.D.C.C. Pursuant to the statute, the hearing may cover only three issues: (1) whether the officer had reasonable grounds to believe the person had been driving or was in actual physical control of a vehicle in violation of Section 39-08-01, N.D.C.C., or equivalent ordinance; (2) whether the person was placed under arrest; and, (3) whether the person refused to submit to the test or tests.

Curiously, the Director has raised the following two issues on appeal: whether the officer had reasonable grounds to believe that Throlson was driving while under the influence and whether Throlson was lawfully arrested. The district court, however, based its reversal of the agency decision upon lack of evidence demonstrating a refusal under Section 39-20-01, N.D.C.C. Although we do not defer to the district court's review, we look to its analysis for guidance in our review of the agency decision. Bickler v. North Dakota State Highway Commissioner, 423 N.W.2d 146, 147 (N.D.1988).

Section 39-20-01, N.D.C.C., requires that chemical tests to determine a driver's blood alcohol content "must be administered at the direction of a law enforcement officer only after placing the person ... under arrest and informing that person that the person 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, drugs, or a combination thereof." Section 39-20-04(1), N.D.C.C., provides that "[i]f a person refuses to submit to testing under section 39-20-01 ... none may be given," but the person's license is subject to revocation for up to three years.

It is axiomatic that before there can be a "refusal" to submit to testing under Section 39-20-01, there must be a valid request for testing under the statute. In an analogous situation, we have held that a driver's failure to submit to testing, after being denied the statutory right to a reasonable opportunity to consult with an attorney before deciding whether to submit to the test, does not constitute a "refusal" for purposes of revoking the person's license under Chapter 39-20. Evans v. Backes, supra, 437 N.W.2d at 850; Kuntz v. State Highway Commissioner, 405 N.W.2d 285, 285-286, 288, 290 (N.D.1987). The underlying premise of our holdings in Evans and Kuntz is that a driver has no obligation to submit to chemical testing until the officer makes a valid request for testing in compliance with the relevant statutory provisions. Because there was no valid request under Chapter 39-20 until the officer afforded the driver his statutorily mandated right to consult an attorney, the driver's subsequent failure to submit to testing was not a refusal which would support revocation of his license. Consistent with our conclusions in Evans and Kuntz, we hold that where an officer does not inform a driver that he or she "is or will be charged with" driving under the influence or actual physical control as required by Section 39-20-01, there has been no legally effective request for testing and the driver's failure to submit to testing is not a "refusal" for purposes of Chapter 39-20, N.D.C.C. ¹

The question left for resolution is whether the evidence would support a finding that Throlson was advised, before the test was requested, that he was or would be charged with DUI. The hearing officer made a general finding that Throlson had refused testing, but did not address the more specific question of whether Throlson was informed of his arrest for DUI before refusing. Because we conclude that there is no evidence in the record which would support a finding that Throlson was so advised, a remand for such a finding would be futile. Cf. Evans v. Backes, supra, 437 N.W.2d at 851 (remanding for finding on whether driver was afforded a reasonable opportunity to consult an attorney before deciding whether to submit to a blood test).

The only evidence presented relating to a DUI arrest is Dingeman's testimony that he told the jailer to book Throlson for DUI. Nothing in the record suggests that this...