Witte v. Hjelle, 9115

Citation234 N.W.2d 16
Decision Date06 October 1975
Docket NumberNo. 9115,9115
PartiesAlvin G. WITTE, Appellant, v. Walter R. HJELLE, State Highway Commissioner, Appellee. Civ.
CourtUnited States State Supreme Court of North Dakota

Syllabus by the Court

1. An order by the state highway commissioner to revoke a person's driver's license for failure to submit to a chemical test of his blood will not be disturbed where there is substantial evidence in the record of the administrative hearing to support the commissioner's findings of fact.

2. The term 'reasonable grounds' as used in § 39--20--04, N.D.C.C., is synonymous with the terms 'probable cause' and 'reasonable cause.'

3. Probable cause exists when the facts and circumstances within a police officer's knowledge and of which he has reasonably trustworthy information are sufficient to warrant a man of reasonable caution in believing that an offense has been or is being committed.

4. Probable cause is a determination dependent on the particular facts and circumstances of each case.

5. Evidence by a driver tending to explain observable conditions as being the result of something other than the consumption of alcohol is irrelevant to a determination of probable cause to arrest for driving while under the influence of intoxicating liquor.

6. In the instant case, substantial evidence exists to support a finding of probable cause when the driver is observed crossing the centerline of the roadway, driving in an erratic manner in his lane of traffic, failing to stop when signaled to do so by an officer, and when such driver has bloodshot eyes, exudes a moderate odor of alcohol, exhibits a swaying and jerky motion when performing a balance test, and admits to the recent consumption of alcohol.

7. For reasons stated in the opinion, the order of the district court affirming the commissioner's revocation of appellant's driver's license is affirmed.

Frederick D. Kraemer, Fargo, for appellant.

Norbert H. Lange, Sp. Asst. Atty. Gen., State Highway Dept., Bismarck, for appellee.

PAULSON, Judge.

This is an appeal from the order of the Cass County District Court affirming an administrative order of the State Highway Commissioner, Walter Hjelle, by his agent (hereinafter sometimes referred to as 'commissioner'), revoking the driver's license of petitioner-appellant Alvin G. Witte, for Witte's refusal to submit, under the Implied Consent Law, Chapter 39--20, N.D.C.C., to a chemical test for the determination of the alcohol content of his blood.

In the early morning hours of October 22, 1974, Witte was seen driving his car in an erratic manner eastbound on U.S. Highway 10 between Fargo and West Fargo. He was observed by Officer Ronnie Dick of the North Dakota Highway Patrol, who began following the Witte vehicle. After observing such vehicle cross over the centerline of the highway once and then drift onto the right shoulder of the road several times, Officer Dick turned on the red signal lights of the patrol car. However, Witte failed to stop on the officer's signal and continued to drive another half-mile upon Highway 10 before both vehicles stopped for a traffic signal at the junction of Main Avenue and Interstate 29. While Officer Dick was outside of his patrol car walking towards Witte's vehicle, the traffic signal changed from red to green and Witte drove off. Officer Dick again followed the Witte vehicle, pulling alongside of it and attracting Witte's attention by flashing a spotlight through the window on Witte's side of his car. Witte then stopped his car. Officer Dick also stopped his patrol car and approached the Witte vehicle.

After asking Witte for his driver's license and on being told by Witte that he did not have it with him, Officer Dick asked Witte to get out of the car. As Witte did so, the officer noticed that Witte's eyes were bloodshot and that there was a moderate odor of alcohol on Witte's breath. Officer Dick then asked Witte if he had been drinking and received an affirmative response. During the administration by Officer Dick of a balancing test to Witte at the scene, Witte swayed in a jerky manner.

Officer Dick then arrested Witte without a warrant for driving while under the influence of intoxicating liquor and requested that Witte submit to a blood test under the Implied Consent Law, § 39--20--01, N.D.C.C., to ascertain the alcohol content of his blood. Witte refused to take such test and, when he was given another opportunity to submit to the blood test after his transfer to the Cass County Jail, Witte again refused to take the blood test.

The next day Officer Dick submitted the affidavit required by § 39--20--04, N.D.C.C. (showing that Witte refused to take a blood test for the alcohol content of his blood), to the state highway commissioner, who thereupon revoked Witte's driver's license for a period of six months. After a written request, pursuant to § 39--20--05, N.D.C.C., an administrative hearing was held on December 27, 1974, before the hearing examiner, Mr. Breen Kennelly, as designee for State Highway Commissioner Walter R. Hjelle. After the hearing, Mr. Kennelly entered findings of fact and conclusions of law based upon the testimony adduced at the hearing, and issued an order sustaining the revocation of Witte's driver's license.

From such order, Witte appealed to the Cass County District Court, pursuant to § 39--20--06, N.D.C.C., which provides for judicial review of the commissioner's decision based upon the record adduced at the administrative hearing. On March 11, 1975, the district court issued its opinion sustaining the action of the commissioner, and the district court's order was entered accordingly on March 13, 1975. It is from such order that this appeal is taken.

In reviewing the decision of the commissioner to order revocation of a driver's license under § 39--20--04, N.D.C.C., the scope of review of the administrative hearing covers three issues:

1. Whether the law enforcement officer had reasonable grounds to believe the person had been driving or was in actual physical control of a vehicle upon the public highways while under the influence of intoxicating liquor;

2. Whether the person was placed under arrest;

3. Whether he refused to submit to the test or tests.

Borman v. Tschida, 171 N.W.2d 757, 759 (N.D.1969).

The only issue before the Court on this appeal, however, is whether Officer Dick had reasonable grounds to believe that Witte had been driving or was in actual physical control of a vehicle upon the public highways while under the influence of intoxicating liquor. It is undisputed that Witte was, in fact, placed under arrest and did, subsequent to the arrest, refuse to submit to the proffered chemical testing for the alcohol content of his blood.

It is well settled in this State that this Court's review of an administrative decision as to the fact-questions presented at a hearing is limited. Borman v. Tschida, supra 171 N.W.2d at 759. Geo. E. Haggart, Inc. v. North Dakota Work. Comp. Bur., 171 N.W.2d 104 (N.D.1969). Consequently, the commissioner's decision in this case will not be disturbed if there is substantial evidence in the record to support his findings of fact. Agnew v. Hjelle, 216 N.W.2d 291, 294 (N.D.1974); Borman v. Tschida, supra 171 N.W.2d at 759.

The issue, therefore, focuses on one question: Was there substantial evidence in the record to support the commissioner's conclusion that Officer Dick had reasonable grounds to believe that Witte had been driving or was in actual physical control of a vehicle upon the public highways while under the influence of intoxicating liquor?

The terms 'reasonable grounds', 'probable cause', and 'reasonable cause' are synonymous and are used interchangeably. See, e.g., Smestad v. Ellingson, 191 N.W.2d 799 (N.D.1971); State v. Salhus, 220 N.W.2d 852, 855 (N.D.1974). See also Thorp v. Department of Motor Vehicles, 480 P.2d 716, 719 (Or.App.1971) ('reasonable grounds' same as 'probable cause' to arrest without a warrant).

In State v. Chaussee, 138 N.W.2d 788, 792 (N.D.1965), this Court discussed the standard for determining probable cause, quoting with approval from Brinegar v. United States, 338 U.S. 160, 175, 69 S.Ct. 1302, 1310, 93 L.Ed. 1879, 1890 (1949), wherein the Supreme Court of the United States stated:

"In dealing with probable cause, however, as the very name implies, we deal with probabilities. These are not technical; they are the factual and practical considerations of everyday life on which reasonable and prudent men, not legal technicians, act. The standard of proof is accordingly correlative to what must be proved."

In applying such standard, probable cause exists where, as stated in State v. Salhus, supra 220 N.W.2d at 855, in quoting from Brinegar v. United States, 338 U.S. 160, 175--176, 69 S.Ct. 1302, 1311, 93 L.Ed. 1879, 1891 (1949);

". . . 'the facts and circumstances within their (the officers') knowledge and of which they had reasonably trustworthy information (are) sufficient in themselves to warrant a man of reasonable caution in the belief that' an offense has been or is being committed. Carroll v. United States, 267 U.S. 132, 162, 45 S.Ct. 280, 288, 69 L.Ed. 543, 39 A.L.R. 790."

Mr. Witte contends that in applying these tests in the instant case probable cause was not established because the observatins of the officer in this case were not the same observations as those set forth in two earlier cases--I.e., State v. Salhus, supra, and Smestad v. Ellingson, s...

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