20200115
FILED
IN THE OFFICE OF THE
CLERK OF SUPREME COURT
NOVEMBER 19, 2020
STATE OF NORTH DAKOTA
IN THE SUPREME COURT
STATE OF NORTH DAKOTA
2020 ND 232
Corey Lee Jundt, Appellant
v.
North Dakota Department of Transportation, Appellee
No. 20200115
Appeal from the District Court of Burleigh County, South Central Judicial
District, the Honorable James S. Hill, Judge.
AFFIRMED.
Opinion of the Court by Crothers, Justice.
Chad R. McCabe, Bismarck, ND, for appellant.
Michael T. Pitcher, Assistant Attorney General, Bismarck, ND, for appellee.
Jundt v. NDDOT
No. 20200115
Crothers, Justice.
[¶1] Corey Jundt appeals from a district court judgment affirming an
administrative hearing officer’s decision to suspend Jundt’s driving privileges
for 180 days for driving under the influence. Jundt argues the hearing officer
erred in suspending his driving privileges because the arresting officer failed
to read him the implied consent advisory. We affirm, concluding the implied
consent requirements of N.D.C.C. § 39-20-01 do not apply when an individual
consents to a chemical test.
I
[¶2] In January 2020, Bismarck police officer Mark Muscha stopped Jundt
for a traffic violation. Muscha investigated Jundt for driving under the
influence of alcohol. Jundt consented to an onsite screening test, which
indicated intoxication. Muscha arrested Jundt for driving under the influence.
Jundt consented to an Intoxilyzer breath test; however, due to a
miscommunication between Muscha and an assisting officer, Jundt was not
read the implied consent advisory relating to chemical testing for driving under
the influence after he was arrested. Jundt’s breath test showed a blood alcohol
concentration of 0.19 percent.
[¶3] The administrative hearing officer concluded the failure to read Jundt
the implied consent advisory did not require suppression of the breath test
results because Jundt consented to the test. The hearing officer suspended
Jundt’s driving privileges for 180 days. Jundt appealed, and the district court
affirmed the hearing officer’s decision.
II
[¶4] Our review of an administrative agency decision to suspend a person’s
driving privileges is governed by the Administrative Agencies Practice Act,
N.D.C.C. ch. 28-32. Hamre v. N.D. Dep’t of Transp., 2014 ND 23, ¶ 5,
842
N.W.2d 865. We review the agency’s decision in an appeal from the district
1
court. Id. Courts exercise limited review in appeals from administrative agency
decisions, and the agency’s decision is given great deference.
Id. The
deferential standard of review for an agency’s findings of fact, conclusions of
law and decision is anchored in the separation of powers doctrine. People to
Save the Sheyenne River, Inc. v. N. D. Dep’t of Health,
2005 ND 104, ¶ 22,
697
N.W.2d 319. We must 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.
[¶5] “Statutory interpretation is a question of law subject to full review upon
appeal.” Hamre, 2014 ND 23, ¶ 6. When an appeal involves statutory
interpretation, this Court will affirm the agency’s order unless it concludes the
agency’s order is not in accordance with the law.
Id.
III
[¶6] Jundt argues the Department of Transportation had no authority to
suspend his driving privileges because the Report and Notice issued by Officer
Muscha failed to show he was given the implied consent advisory. The
Department contends Jundt waived this argument because he failed to raise
this issue in his specifications of error in his appeal to the district court.
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[¶7] Under N.D.C.C. § 39-20-06, a person may appeal the Department’s
decision to suspend driving privileges to the district court. A person appealing
under N.D.C.C. § 39-20-06 must comply with the specification-of-error
requirement of N.D.C.C. § 28-32-42(4). Rounkles v. Levi, 2015 ND 128, ¶ 10,
863 N.W.2d 910.
[¶8] Jundt failed to raise the issue relating to the Report and Notice in the
specifications of error in his appeal to the district court. We decline to address
Jundt’s argument.
IV
[¶9] Jundt asserts that because he was not provided with the implied consent
advisory for chemical testing under N.D.C.C. § 39-20-01(3)(a), the request for
testing was not in compliance with N.D.C.C. § 39-20-01.
[¶10] Under N.D.C.C. § 39-20-01(1), a person operating a motor vehicle in this
state “is deemed to have given consent, and shall consent, subject to the
provisions of this chapter, to a chemical test . . . of the blood, breath, saliva, or
urine for the purpose of determining the alcohol concentration or presence of
other drugs . . . in the individual’s blood, breath, saliva, or urine.” The implied
consent advisory is contained in N.D.C.C. § 39-20-01(3), and provides:
“a. The law enforcement officer shall inform the individual North
Dakota law requires the individual to take a chemical test to
determine whether the individual is under the influence of alcohol
or drugs and refusal of the individual to submit to a test directed
by the law enforcement officer may result in a revocation of the
individual’s driving privileges for a minimum of one hundred
eighty days and up to three years.
b. If an individual refuses to submit to testing under this section,
proof of the refusal is not admissible in any administrative
proceeding under this chapter if the law enforcement officer fails
to inform the individual as required under subdivision a.”
Section 39-20-01(3), N.D.C.C., was amended in 2019. 2019 N.D. Sess. Laws ch.
322, § 3. The law as amended in 2019 applies to this case.
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[¶11] Jundt contends this Court’s decision in Alvarado v. N.D. Dep’t of Transp.,
2019 ND 231,
932 N.W.2d 911, requires reversal of the hearing officer’s
decision and reinstatement of his driving privileges. In Alvarado, at ¶ 2, the
driver refused a chemical test; however, he was only read a partial implied
consent advisory that failed to inform him that refusing to take a test could be
treated as a crime. We held “that a prerequisite to a determination that an
operator has refused a request for testing is finding that the request for testing
was made under N.D.C.C. § 39-20-01.” Id. at ¶ 5.
[¶12] Jundt claims that under Alvarado, a properly administered chemical test
under N.D.C.C. § 39-20-01 must include a reading of the implied consent
advisory regardless of whether a person consents or refuses to take a test. We
disagree.
[¶13] The version of N.D.C.C. § 39-20-01(3) under which Alvarado was
decided, stated:
“a. The law enforcement officer shall inform the individual charged
that North Dakota law requires the individual to take a chemical
test to determine whether the individual is under the influence of
alcohol or drugs and that refusal of the individual to submit to a
test directed by the law enforcement officer may result in a
revocation of the individual’s driving privileges for a minimum of
one hundred eighty days and up to three years. In addition, the
law enforcement officer shall inform the individual refusal to take
a breath or urine test is a crime punishable in the same manner as
driving under the influence. If the officer requests the individual
to submit to a blood test, the officer may not inform the individual
of any criminal penalties until the officer has first secured a search
warrant.
b. A test administered under this section is not admissible in any
criminal or administrative proceeding to determine a violation of
section 39-08-01 or this chapter if the law enforcement officer fails
to inform the individual charged as required under subdivision a.”
[¶14] The legislature added subsection b in 2015. 2015 N.D. Sess. Laws ch.
268, § 9. Under that version, this Court held “[t]he Legislature has made
4
chemical test results inadmissible under N.D.C.C. § 39-20-01(3)(b) unless the
advisory requirements of N.D.C.C. § 39-20-01(3)(a) have been fulfilled,
regardless of a person’s ‘voluntary consent.’” State v. O’Connor, 2016 ND 72,
¶ 12,
877 N.W.2d 312.
[¶15] Before the addition of N.D.C.C. § 39-20-01(3)(b) in 2015, this Court held
the implied consent requirements of N.D.C.C. § 39-20-01 “[do] not apply when
the driver consents to [chemical] testing.” Fossum v. N.D. Dep’t of Transp.,
2014 ND 47, ¶ 12,
843 N.W.2d 282; see also City of Bismarck v. Hoffner,
379
N.W.2d 797, 799 (N.D. 1985) (stating “[i]t appears axiomatic to this court that
implied consent is unnecessary where actual consent is given”); State v.
Abrahamson,
328 N.W.2d 213, 215 (N.D. 1982).
[¶16] The current version of N.D.C.C. § 39-20-01(3)(b) states, “If an individual
refuses to submit to testing under this section, proof of the refusal is not
admissible in any administrative proceeding under this chapter if the law
enforcement officer fails to inform the individual as required under subdivision
a.” In the 2019 amendments, the legislature removed the consequences for
failing to read the implied consent advisory from N.D.C.C. § 39-20-01(3)(b)
unless the individual refuses a chemical test. The failure to read the advisory
is significant in an administrative proceeding if the individual refuses a
chemical test. The penalty for failing to read the implied consent advisory no
longer applies when the individual consents to a chemical test.
[¶17] Under N.D.C.C. § 39-20-01(1), an individual consents to chemical testing
by operating a motor vehicle. The implied consent advisory allows an
individual to withdraw his or her consent and say “no” to a chemical test.
However, when an arrested person agrees to chemical testing, the implied
consent requirements of N.D.C.C. § 39-20-01 do not apply. Because Jundt
consented to a chemical breath test, the hearing officer did not err in
suspending Jundt’s driving privileges.
5
V
[¶18] Jundt’s remaining arguments are not necessary to our decision or are
without merit. We affirm the judgment upholding the hearing officer’s decision
to suspend Jundt’s driving privileges.
[¶19]
Jon J. Jensen, C.J.
Gerald W. VandeWalle
Daniel J. Crothers
Lisa Fair McEvers
Jerod E. Tufte
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