Wiederholt v. Director, North Dakota Dept. of Transp.

• Decision Date: 31 October 1990
• Docket Number: No. 900103,900103
• Citation: 462 N.W.2d 445
• Parties: Vincent D. WIEDERHOLT, Petitioner and Appellant, v. DIRECTOR, NORTH DAKOTA DEPARTMENT OF TRANSPORTATION, Respondent and Appellee. Civ.
• Court: North Dakota Supreme Court

Page 445

462 N.W.2d 445

Vincent D. WIEDERHOLT, Petitioner and Appellant, v. DIRECTOR, NORTH DAKOTA DEPARTMENT OF TRANSPORTATION Respondent and Appellee.

Civ. No. 900103.

Supreme Court of North Dakota.

Oct. 31, 1990.

Weiss, Wright, Paulson & Merrick, Jamestown, for petitioner and appellant; argued by James A. Wright.

Gregory B. Gullickson (argued), Asst. Atty. Gen., Bismarck, for respondent and appellee.

ERICKSTAD, Chief Justice.

Vincent D. Wiederholt appeals from the order for judgment ¹ of the District Court for Ransom County issued February 6, 1990, affirming the decision of the hearing officer for the North Dakota State Highway Commissioner (now Director, North Dakota Department of Transportation) which order suspended Wiederholt's driver's license for a period of two years. We affirm.

On August 26, 1989, Wiederholt was arrested for being in actual physical control of a motor vehicle while intoxicated in violation of section 39-08-01, N.D.C.C. Wiederholt was discovered lying passed out in his pickup which was located in Wiederholt's farmyard and approximately 100 feet from the roadway.

The relevant facts leading up to the arrest are undisputed. During the afternoon of August 26, 1989, Officer Richard Geiss of the North Dakota Highway Patrol, was directing traffic for the Centennial Fair Days Parade in the city of Lisbon. At approximately 5:15 p.m., Officer Geiss was informed that a yellow pickup bearing the license plate BCL082 had been observed weaving down the roadway and forcing vehicles off the road. Officer Geiss was given a description of the driver and informed that the pickup had continued down Highway 32 until reaching Will's Body Shop, at which time the driver attempted to proceed west.

After running a check of the vehicle's license plate, Officer Geiss attempted to locate the pickup. Upon reaching the intersection near Will's Body Shop which had been described by the informant, Officer Geiss followed the tracks of a vehicle which appeared to have been weaving from one side of the road to the other.

The tracks continued to be visible in the loose gravel for approximately one mile and led directly into Wiederholt's farmyard. Upon reaching the Wiederholt farmyard, Officer Geiss observed a pickup matching the description and bearing the license number which had been provided by the informant. Additionally, a pair of feet were observed sticking out of the door on the driver's side of the vehicle.

Officer Geiss entered the farmyard and stopped his patrol car near the pickup. As the officer approached the pickup he could smell a strong odor of alcohol and observed Mr. Wiederholt passed out on the seat. Officer Geiss succeeded in waking Wiederholt who responded by asking what was happening. Wiederholt was informed of the officer's and informant's observations to which Wiederholt responded by stating he had driven from Gwinner, North Dakota. Officer Geiss observed that the keys were still in the ignition of the vehicle and noted that the road from Gwinner was the same road on which he had observed the erratic tire tracks and from which he had approached the farmyard. Additionally, Officer Geiss could clearly distinguish his own footprints in the loose dirt around the pickup but observed no other footprints.

After helping Wiederholt walk to the patrol car, Officer Geiss concluded that no field sobriety tests could be performed because Wiederholt was in such a severely impaired condition. The officer asked Wiederholt if he had consumed any alcohol while parked in the farmyard or if he currently had any alcohol in his mouth, to which Wiederholt responded "no" and indicated that he had consumed the alcohol earlier that day. Wiederholt was then placed under arrest for violation of section 39-08-01, N.D.C.C., ² and transported to the sheriff's office for an Intoxilyzer test. The results of the Intoxilyzer test indicated a blood-alcohol content of .22 percent by weight.

On September 25, 1989, an administrative hearing was held to determine whether or not Chapter 39-20, N.D.C.C., had been complied with and, if so, whether or not Wiederholt's driving privileges should be suspended and to what extent. At the close of the hearing, after a review of the evidence, the hearing officer concluded that Officer Geiss had reasonable grounds to believe Wiederholt had violated section 39-08-01, N.D.C.C., that Wiederholt was properly arrested prior to being given a test to determine the alcohol content of his blood, and that a fairly administered Intoxilyzer test was administered disclosing at least a .10 percent blood-alcohol content. As a result, Wiederholt's driving privileges were suspended for a period of two years. ³

Wiederholt appealed the decision of the administrative officer to the District Court for the County of Ransom. The district court affirmed the decision of the administrative officer. Wiederholt now brings this appeal, contending: 1) the trial court erred in determining that Wiederholt was guilty of driving under the influence of alcohol, and 2) the trial court erred in affirming the administrative hearing officer's determination that the offense of actual physical control applies to private property as well as public roads.

Our review of an administrative decision is governed by the provisions of the Administrative Agencies Practice Act, Chapter 28-32, N.D.C.C. See Heinrich v. North Dakota State Hwy. Com'n, 449 N.W.2d 587, 588 (N.D.1989); Greaves v. North Dakota State Hwy. Com'r, 432 N.W.2d 879, 881 (N.D.1988); Dodds v. North Dakota State Hwy. Com'r, 354 N.W.2d 165, 168 (N.D.1984). In following the provisions of Chapter 28-32 we do not review the findings of the district court, but instead we examine the record of the administrative agency. Heinrich, 449 N.W.2d at 588 (citing Greaves, 432 N.W.2d at 881). When reviewing the decision of an administrative hearing, we are limited to determination of the following:

"(1) Is the decision of the agency in accordance with the law? (2) Is the decision of the agency in violation of the appellant's constitutional rights? (3) Have the provisions of Chapter 28-32 been complied with? (4) Was the appellant given a fair hearing? (5) Are the findings of fact supported by a preponderance of the evidence? (6) Are the conclusions of law sustained by the findings of fact? (7) Is the agency decision supported by the conclusions of law? See Sec. 28-32-19, N.D.C.C. See also Dodds v. North Dakota State Highway Com'r, 354 N.W.2d 165 (N.D.1984)."

Greaves v. North Dakota State Hwy. Com'r, 432 N.W.2d at 881. Additionally, we will exercise restraint in our review of the findings of an administrative agency to insure that we do not substitute our judgment for that of the agency. Dodds, 354 N.W.2d at 168.

Wiederholt's primary contention in this appeal to our Court is that because section 39-10-01, subsection (2), N.D.C.C., does not include the offense of being in actual physical control of a motor vehicle, as distinguished from the offense of driving a motor vehicle while under the influence of intoxicating liquor, section 39-08-01, N.D.C.C., does not extend to offenses occurring on private property. Although the issue of whether or not section 39-08-01, N.D.C.C., applies to private property was raised in State v. Novak, 338 N.W.2d 637 (N.D.1983), it was not raised in this frame of reference. Wiederholt contends our decision in Novak was a gross oversight, and that the case at hand presents this Court with an opportunity to correct the error it made approximately seven years ago in Novak.

In Novak, we concluded that sections 39-08-01 and 39-10-01 must be construed together as a prohibition against being in actual physical control of a vehicle while under the influence of alcohol on private property as well as the highways. Id. at 640. In doing so, we said:

"To do otherwise '... would defeat the purpose of the statute which seeks to protect all against the real danger caused by drunken drivers whether on the highway, a parking lot or elsewhere within the state.' "

Id. (quoting State v. Valeu, 257 Iowa 867, 134 N.W.2d 911, 913 (1965)). In Novak, we were faced with the issue of whether or not the "elsewhere" language in section 39-10-01, N.D.C.C., extended the offense of actual physical control to private property. We concluded that it did.

Wiederholt notes that section 39-08-01 has undergone a number of revisions since our decision in Novak, while section 39-10- 01 has remained relatively unchanged. ⁴ Wiederholt asserts that because the "critical language" of section 39-10-01 has not been expanded to include the offense of actual physical control of a motor vehicle while under the influence of alcohol, the legislature has intended to prevent the application of this offense to private property.

In Thomas, we recognized that the 1983 legislature had amended section 39-08-01, N.D.C.C., to separate the offenses of driving under the influence and being in actual physical control, while section 39-10-01, N.D.C.C., remained unchanged. State v. Thomas, 420 N.W.2d 747, 753 (N.D.1988). Even so, we believed that the legislature did not intend to alter our decision in Novak. Id. Since our decision in Thomas, the legislature has amended section 39-08-01, N.D.C.C., to include both offenses in the same paragraph (39-08-01, subs. 1.). Had this issue been raised in this form prior to our decisions in Novak and Thomas, we concede for purposes of discussion only that we might have concluded that the legislature did not intend to extend the offense of being in actual physical control to private property, but we are past that moment of decision and now must be guided by the fact that the legislature has not pointedly and definitely acted to show its disagreement with our decisions.

We recognize that if the legislature is not satisfied with our interpretation of a statute, it is free to amend that statute to reflect its true intentions. See generally, Colling v. Hjelle, 125 N.W.2d...