Wilhelmi v. Director of Dept. of Transp.

• Decision Date: 24 March 1993
• Docket Number: No. 920282,920282
• Citation: 498 N.W.2d 150
• Parties: Kelly WILHELMI, Petitioner and Appellee, v. DIRECTOR OF the DEPARTMENT OF TRANSPORTATION, Respondent and Appellant. Civ.
• Court: North Dakota Supreme Court

Page 150

498 N.W.2d 150

Kelly WILHELMI, Petitioner and Appellee, v. DIRECTOR OF the DEPARTMENT OF TRANSPORTATION, Respondent and Appellant.

Civ. No. 920282.

Supreme Court of North Dakota.

March 24, 1993.

Paulson and Merrick, Jamestown, for petitioner and appellee; argued by Randall L. Hoffman.

Elaine Ayers (argued), Asst. Atty. Gen., Atty. Gen. Office, Bismarck, for respondent and appellant.

MESCHKE, Justice.

The North Dakota Department of Transportation appeals a district court judgment reversing the Department's decision to suspend the driving privileges of Kelly Ann Wilhelmi for 91 days for driving under the influence of alcohol. We reverse the district court and reinstate the suspension.

At 1:55 a.m. on one night in June 1992, Jamestown police officer Thomas R. Nagel responded to a radioed dispatch to investigate an injury accident. At the reported intersection, Nagel found that a motorcycle and a car had collided. Although not discovered until later, the motorcycle's driver had left the scene on foot. The motorcycle's passenger lay on the ground with a head injury. The driver of the car, Wilhelmi, was unconscious behind the wheel.

After he checked the condition of the motorcycle's passenger, Nagel checked Wilhelmi in the car. Nagel "could immediately smell a very strong odor of an alcoholic beverage present." He found that the car's airbag had activated, that Wilhelmi was breathing, and that "as she breathed you could smell the strong odor of alcoholic beverage on her breath." Nagel found some unopened cans of beer in a carton on the passenger-side floorboard of the car, and some empty beer cans of a different brand outside.

Nagel called for ambulances to take Wilhelmi and the motorcycle's passenger to the hospital. He also radioed Jamestown police officer Leroy Gross to assist him. When Gross arrived, he helped the ambulance crew to remove Wilhelmi from the car. In doing so, Gross saw Wilhelmi's unconsciousness; the beer in the car; a large, empty martini or margarita glass on the rear car seat; and that "there was a strong presence of an odor of an alcoholic beverage coming from the vehicle." Nagel told Gross to go to the hospital and "see if [Wilhelmi] had come to or not." If she had not, then Nagel told Gross "to go ahead and draw blood on her because of the injury we had."

When Gross arrived at the hospital, Wilhelmi was still unconscious. After telling hospital personnel that he needed them to draw blood from Wilhelmi as soon as possible, he shook her, called out her name, and told her that she was under arrest for driving under the influence, but she did not respond. Immediately afterward, at 2:52 a.m., Gross had blood taken from the unconscious Wilhelmi. The test results showed that Wilhelmi had a blood-alcohol concentration of .14% by weight.

Around 7:00 p.m. that evening, Wilhelmi left the hospital and returned to her apartment. At Nagel's direction, she went to the Jamestown law enforcement center at 11:00 p.m. where Nagel cited her for violating NDCC 39-08-01 by driving under the influence.

After an administrative hearing, the hearing officer found that "there was a serious injury ... sufficient to exempt [Wilhelmi] from being placed under arrest specifically." The hearing officer concluded that "[t]he arresting officer had reasonable grounds to believe [Wilhelmi] had been driving a vehicle while under the influence of intoxicating liquor in violation of section 39-08-01, N.D.C.C. [Wilhelmi] did not need to be placed under arrest." The hearing officer suspended Wilhelmi's license for 91 days.

Wilhelmi appealed the Department's decision to the district court. She claimed that the hearing officer's determination that the arresting officer had grounds to believe Wilhelmi had been driving under the influence was not supported by the preponderance of the evidence, and she challenged the hearing officer's conclusion that she "did not need to be placed under arrest."

The district court ruled that "the test was fairly administered," and that "the hearing officer was correct in making a determination that there was no need to place Wilhelmi under arrest prior to the blood being drawn." The court stated, however, that "[t]he fact that the statute dispenses with the requirement that an unconscious person be placed under arrest does not mean it dispenses with the requirement that there be probable cause to support an arrest." The court decided that "[t]he fact that Wilhelmi was in an accident involving serious injury to another person," and the fact that she "was found unconscious in the driver's seat" did not furnish reasonable grounds for Nagel to believe that Wilhelmi was under the influence.

The district court reversed the Department and set aside the suspension. The Department appeals.

The appeal of an administrative agency decision to suspend an operator's license is governed by NDCC Ch. 28-32, the Administrative Agencies Practice Act. Greaves v. North Dakota State Highway Comm'r, 432 N.W.2d 879 (N.D.1988). We review the agency decision, not the district court's decision. North Dakota Department of Transportation v. DuPaul, 487 N.W.2d 593 (N.D.1992). Unless we conclude that one of the six reasons given in NDCC 28-32-19 exists, we affirm the agency's decision.

The Department agrees with the district court that "arrest is not a prerequisite to the taking of a blood sample from an unconscious person." The Department argues that it is enough that "there was probable cause to believe Ms. Wilhelmi had been driving or was in actual physical control of a vehicle in violation of N.D.C.C. Sec. 39-08-01." Wilhelmi counters that she "should have been placed under arrest" before being compelled to give a sample of her blood, and that the facts of this case "are not enough to show probable cause." ¹

The Fourth Amendment to the United States Constitution guarantees "[t]he right of the people to be secure in their persons ... against unreasonable searches and seizures" and ensures that "no warrants shall issue but upon probable cause...." Article I, section 8 of the North Dakota Constitution similarly protects people from unreasonable searches and seizures. The law on the search and seizure of a blood sample from a nonconsenting driver largely derives from the decision of the United States Supreme Court in Schmerber v. California, 384 U.S. 757, 86 S.Ct. 1826, 16 L.Ed.2d 908 (1966). Schmerber had been arrested at a hospital while under treatment for injuries from an accident with the car that he had been driving. Conscious, Schmerber had refused to allow his blood to be withdrawn. At the direction of a police officer, a blood sample was taken from him at the hospital; analysis of the sample indicated his intoxication; and the test report was used as evidence at the trial that convicted him of driving under the influence.

On review, the Court affirmed his conviction, holding that taking the blood sample was a reasonable search incident to Schmerber's arrest, because the officer reasonably believed "that he was confronted with an emergency, in which the delay necessary to obtain a warrant, under the circumstances, threatened 'the destruction of evidence.' " 384 U.S. at 770, 86 S.Ct. at 1835. The Court concluded that a blood test was reasonable.

Extraction of blood samples for testing is a highly effective means of determining the degree to which a person is under the influence of alcohol.... Such tests are a commonplace in these days of periodic physical examinations ... the quantity of blood extracted is minimal, and ... the procedure involves virtually no risk, trauma, or pain.... [T]he test was performed in a reasonable manner ... in a hospital environment according to accepted medical practices.

Schmerber, 384 U.S. at 771, 86 S.Ct. at 1836 (citations omitted). Later, in South Dakota v. Neville, 459 U.S. 553, 103 S.Ct. 916, 74 L.Ed.2d 748 (1983), the Court also held that the evidentiary use of an arrestee's refusal to submit to a blood-alcohol test does not compromise the accused's constitutional right against self-incrimination when state law permits the accused to refuse, but discourages that choice by allowing the refusal to be used against the accused at trial.

In State v. Hansen, 444 N.W.2d 330 (N.D.1989), we explained this background for our implied-consent statutes that allow a driver to refuse to submit to a chemical test. NDCC 39-20-04. In Hansen, we reviewed the suppression of a blood-sample test taken in a hospital from a conscious driver. "[T]he blood sample was obtained without a search warrant, without Hansen's consent, and without first placing Hansen under arrest." 444 N.W.2d at 331. The prosecution contended that NDCC 39-20-01.1, enacted in 1987, permitted the warrantless withdrawal of a driver's blood without any requirement of a prior arrest, after an accident resulting in death or serious bodily injury. Then, as now, NDCC 39-20-01.1 said:

Chemical test of driver in serious bodily injury or fatal crashes. Notwithstanding section 39-20-01 or 39-20-04, when the driver of a vehicle is involved in an accident resulting in the death or serious bodily injury, as defined in section 12.1-01-04, of another person, and there is probable cause to believe that the driver is in violation of section 39-08-01, the driver may be compelled by a police officer to submit to a test or tests of the driver's blood, breath, saliva, or urine to determine the alcohol concentration or the presence of other drugs or substances.

We held this section ambiguous, reviewed its legislative history, and concluded that, while it uses probable cause to believe that the driver is under the influence, "a serious constitutional question arises if we interpret Section 39-20-01.1 to not require an arrest." 444 N.W.2d at 332. Because we thought that "an arrest is not only a statutory requirement, [NDCC 39-20-01], but a constitutional one as well," id., we concluded in Hansen, 444 N.W.2d at 333, that the...