Washburn v. Levi, 20150149.

• Decision Date: 22 December 2015
• Docket Number: No. 20150149.,20150149.
• Citation: 872 N.W.2d 605
• Parties: Casey Jerald WASHBURN, Appellee and Cross–Appellant v. Grant LEVI, Director Department of Transportation, Appellant and Cross–Appellee.
• Court: North Dakota Supreme Court

872 N.W.2d 605

Casey Jerald WASHBURN, Appellee and Cross–Appellant

v.Grant LEVI, Director Department of Transportation, Appellant and Cross–Appellee.

No. 20150149.

Supreme Court of North Dakota.

Dec. 22, 2015.

Nathan D. Severson (argued) and Luke T. Heck (on brief), Fargo, ND, for appellee and cross-appellant.

Michael T. Pitcher, Assistant Attorney General, Office of Attorney General, Bismarck, ND, for appellant and cross-appellee.

VANDE WALLE, Chief Justice.

[¶ 1] The Department of Transportation appealed, and Casey Washburn cross-appealed, from a district court order reversing the Department of Transportation's revocation of Washburn's driver's license. We affirm.

I

[¶ 2] During a patrol, a Jamestown police officer encountered a vehicle parked along a residential street with its door ajar. Upon approaching the vehicle, the officer discovered Washburn asleep in the driver's seat. After waking Washburn, the officer detected an alcoholic odor that became stronger as the officer conversed with Washburn. The officer asked Washburn to perform field sobriety testing, which he refused. The officer arrested Washburn on suspicion of being in actual physical control of a vehicle while intoxicated.

[¶ 3] The officer transported Washburn to the law enforcement center, at which the officer apprised Washburn of the implied consent advisory multiple times. After each reading, Washburn told the officer he did not understand the advisory and would not understand the advisory no matter how many times the officer read it to him. The officer informed Washburn he considered Washburn to have refused chemical testing. Washburn responded saying he was not refusing, although he never stated he would submit to testing. There is no evidence in the record indicating whether Washburn took a chemical test.

[¶ 4] Based upon this refusal, the Department of Transportation ("Department") sought to revoke Washburn's driver's license. Washburn requested an administrative hearing. The arresting officer testified that, in the police report, he noted Washburn requested to speak with an attorney. The arresting officer, however, offered conflicting accounts of Washburn's purported request for an attorney at the administrative hearing. In response to an initial question of whether Washburn requested to call an attorney, the arresting officer testified Washburn only informed center staff he requested to make a phone call, which the officer assumed to be to an attorney. The officer testified he sought clarification and asked Washburn if he wanted to call an attorney. Washburn responded he wanted to call his father. Because he was unsure whether Washburn wanted to call an attorney, his father, or both, the arresting officer testified he began making arrangements so Washburn could call whomever he pleased. In response to a later question, the arresting officer answered in the affirmative when asked if, in addition to calling his father, Washburn also indicated he wanted to talk to an attorney. The officer testified law enforcement center staff informed Washburn he would not be able to make any calls until they completed the booking process. There is no evidence in the record showing whether Washburn made any phone calls.

[¶ 5] After receiving this and other testimony, the hearing officer concluded probable cause existed to believe Washburn was in actual physical control of the vehicle while intoxicated. In considering whether Washburn received an adequate opportunity to consult with counsel after his purported request to do so, the hearing officer found:

Washburn told [the arresting officer] and the jailer that he wanted to speak to an attorney. [The arresting officer] inquired further about Washburn's request to speak to an attorney and Washburn then indicated that he actually wanted to call his father.... When Washburn asked to speak to an attorney, it was after he refused by his actions to take the test. There was no evidence that Washburn wanted to speak to an attorney for the purposes of determining whether he should take the chemical test. The purpose of his request to speak to an attorney [was] vague.

Based upon this information, the hearing officer concluded there was no violation of Washburn's qualified statutory right to speak with counsel. The hearing officer concluded the Department established all elements necessary to revoke Washburn's driver's license, and the hearing officer revoked Washburn's driver's license for 180 days. The hearing officer also denied Washburn's request for attorney's fees.

[¶ 6] Washburn appealed to the district court, arguing the hearing officer erred in concluding probable cause existed to believe Washburn was in actual physical control of the vehicle while intoxicated and there was no violation of his statutory right to speak with counsel. The district court concluded there was no violation of Washburn's qualified statutory right to consult with counsel. The court, however, reversed the hearing officer's conclusion probable cause existed to believe Washburn was in actual physical control of the vehicle because the hearing officer failed to adequately address the evidence presented by Washburn. The court denied Washburn's request for attorney's fees and entered an order reversing the revocation of Washburn's driver's license.

II

[¶ 7] Washburn argues the district court erred in affirming the hearing officer's conclusion there was no violation of his qualified statutory right to consult with counsel. On appeal, this Court's "review of an administrative suspension of a person's license is governed by the Administrative Agencies Practice Act, N.D.C.C. ch. 28–32." Aamodt v. N.D. Dep't of Transp., 2004 ND 134, ¶ 12, 682 N.W.2d 308. Our standard of review is the same as that of the district court. N.D.C.C. § 28–32–49. We will affirm an agency's decision 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 preponderance of the evidence.

6. The conclusions of law and order of the agency are not supported by its findings of fact.

7. The findings of fact made by the agency do not sufficiently address the evidence presented to the agency by the appellant.

8. The conclusions of law and order of the agency do not sufficiently explain the agency's rationale for not adopting any contrary recommendations by a hearing officer or an administrative law judge.

N.D.C.C. § 28–32–46.

[¶ 8] Before deciding whether to submit to chemical testing, an individual has a qualified statutory right to consult with an attorney. N.D.C.C. § 29–05–20. "[I]f an arrested person asks to consult with an attorney before deciding to take a chemical test, he must be given a reasonable opportunity to do so if it does not materially interfere with the administration of the test." Kuntz v. State Highway Comm'r, 405 N.W.2d 285, 290 (N.D.1987). A failure to provide a reasonable opportunity to consult with counsel after the arrestee requests as much disallows the Department from revoking the arrestee's driver's license under N.D.C.C. ch. 39–20 based upon the arrestee's refusal to submit to chemical testing. Id.

[¶ 9] In determining whether an arrestee requested an attorney for purposes of determining whether to consent to chemical testing, we have done away with case-by-case determinations that are often a matter of subjectiveness. In Baillie v. Moore, we articulated a self-described bright-line standard against which a purported request for an attorney should be judged:

[W]e hold that if a DUI arrestee, upon being asked to submit to a chemical test, responds with any mention of a need for an attorney—to see one, to talk to one, to have one, etc.—the failure to allow the arrestee a reasonable opportunity to contact an attorney prevents the revocation of his license for refusal to take the test. A refusal to take the test under these conditions is not the affirmative refusal necessary to revoke a license under § 39–20–04, N.D.C.C.

522 N.W.2d 748, 750 (N.D.1994). Under this standard, if "the arrestee responds with any affirmative mention of a need for an attorney, law enforcement personnel must assume the arrestee is requesting an opportunity to consult with an attorney and must allow a reasonable opportunity to do so." Id.

A

[¶ 10] The parties dispute the circumstances surrounding Washburn's purported request for an attorney, with Washburn arguing his comments qualified as an affirmative mention of an attorney satisfying Baillie and the Department arguing his comments were insufficient to do so. Here, the record is convoluted, in large part, because of the inconsistencies in the arresting officer's recollection of his conversation with Washburn. The arresting officer testified that, in the police report, he noted Washburn requested to speak with an attorney. Under cross-examination at the administrative hearing, the arresting officer also answered in the affirmative when asked if Washburn requested an attorney. However, the arresting officer also testified Washburn only requested to make a phone call, not that he requested to call an attorney, although the officer assumed Washburn wanted to call an attorney. In order to clarify Washburn's request, the arresting officer testified he asked Washburn if he wanted to call an attorney, to which Washburn responded he wanted to call his father. Still unsure about Washburn's request, the officer began, but did not complete, the process of securing a telephone for Washburn. Based upon the presented testimony, the hearing officer concluded: "Washburn told [the arresting officer] and the jailer that he wanted to speak to an attorney. [The arresting officer] inquired further about Washburn's request to speak to an attorney...