Hunts Along v. N.D. Dep't of Transportation
Hunts Along v. N.D. Dep't of Transportation
Opinion
[¶ 1] Wilbur Paul Hunts Along appealed from a judgment affirming the Department of Transportation's revocation of his driving privileges for two years. Hunts Along argues the Department failed to show that Hunts Along refused to submit to testing "under section ... 39-20-14," and therefore revocation under N.D.C.C. § 39-20-04(1) was improper. We conclude the Department did not err in finding that Hunts Along refused to submit to an onsite screening test in violation of N.D.C.C. § 39-20-14. We affirm.
I
[¶ 2] In October 2017, a police officer initiated a traffic stop on a vehicle in Dunn County after receiving a call about an erratic driver and personally observing the vehicle cross the center line three times. The officer made contact with the driver, Hunts Along, who had red, bloodshot eyes. Hunts Along denied consuming alcohol and stated he was upset because he was following an ambulance carrying his brother. The vehicle had an odor of alcohol and the officer observed an open can of beer on the passenger floorboard. Hunts Along agreed to perform the horizontal gaze nystagmus test, which he failed, but refused additional testing. The officer read Hunts Along his Miranda rights and the implied consent advisory pertaining to an onsite screening test. Hunts Along refused the onsite screening test. The officer arrested Hunts Along for driving while under the influence and read the implied consent advisory regarding the chemical breath test. Hunts Along refused to take a chemical breath test.
[¶ 3] At the administrative hearing on revocation of Hunts Along's drivers license, the hearing officer found that Hunts Along refused to submit to the onsite screening test. Hunts Along objected that the record did not show the screening test offered to Hunts Along was a screening test under N.D.C.C. § 39-20-14. The hearing officer overruled the objection. Because refusal of the onsite screening test resulted in the revocation of Hunts Along's drivers license, the hearing officer did not rule on the issue of refusal of the chemical breath test. Hunts Along requested judicial *493 review of the decision. The district court affirmed the hearing officer's decision.
II
[¶ 4] When reviewing license suspensions under N.D.C.C. § 39-20-05, we consider the record of the administrative agency rather than the district court's ruling.
Grosgebauer v. N.D. Dep't of Transp
.,
[¶ 5] In reviewing an agency's findings of fact, we do not make independent findings of fact or substitute our judgment for that of the agency; rather, we determine only whether a reasoning mind reasonably could have concluded the agency's findings were supported by the weight of the evidence from the entire record.
Crawford,
III
[¶ 6] Hunts Along argues N.D.C.C. §§ 39-20-04 and 39-20-14 require the Department to prove at the administrative hearing that the unperformed screening and chemical tests would have complied with statutory requirements. Section 39-20-04, N.D.C.C., applies "[i]f a person refuses to submit to testing under section 39-20-01 or 39-20-14" and provides a right to an administrative hearing. N.D.C.C. § 39-20-04(1). For a refusal, the administrative hearing "is limited to whether the officer had reasonable grounds to stop [the driver] and to believe that his 'body contained alcohol,' whether [the driver] was lawfully arrested, and whether [the driver] refused to submit to testing."
N.D. Dep't of Transp. v. DuPaul
,
[¶ 7] We have held that "if a person refuses to cooperate with an operator's attempt to follow the State Toxicologist's approved methods, the person cannot thereafter challenge the foundation for admissibility of the test results on the ground that the approved methods were not followed."
*494
Bryl v. Backes
,
[¶ 8] Although the State might, as a matter of course, file all materials ordinarily submitted following a chemical test, we cannot logically construe the statutes to require the State to provide foundational evidence for a test which was refused, thus making the foundational evidence irrelevant. Other states with statutes akin to N.D.C.C. § 39-20-14 have reached similar conclusions where a driver attempts to dispute the validity or proper procedure of a refused chemical test. See MO. REV. STAT. § 577.041 (2017) and S.C. CODE ANN. § 56-5-2951 (2016).
[¶ 9] Missouri courts have repeatedly held that "in a refusal case the Director does not have to prove that the results of the breath test would have otherwise been admissible had the driver submitted to the test."
Bess v. Dir. of Revenue
,
[¶ 10] South Carolina courts have similarly held that the State does not have to prove proper procedures were followed when a driver refuses to take a breath test.
See
State v. Jansen
,
[¶ 11] Because Hunts Along refused the onsite chemical test, he cannot now challenge the evidentiary foundation of a test that was not performed because of his own decision.
Bryl v. Backes
,
IV
[¶ 12] We affirm the judgment.
[¶ 13] Gerald W. VandeWalle, C.J.
Jon J. Jensen
Lisa Fair McEvers
Daniel J. Crothers
Jerod E. Tufte
Reference
- Full Case Name
- Wilbur Paul HUNTS ALONG, Appellant v. DIRECTOR, NORTH DAKOTA DEPARTMENT OF TRANSPORTATION, Appellee
- Status
- Published