FILED
IN THE OFFICE OF THE
CLERK OF SUPREME COURT
OCTOBER 2, 2023
STATE OF NORTH DAKOTA
IN THE SUPREME COURT
STATE OF NORTH DAKOTA
2023 ND 190
William Gene Kirkpatrick, Petitioner and Appellant
v.
North Dakota Department of Transportation, Respondent and Appellee
No. 20230085
Appeal from the District Court of Bowman County, Southwest Judicial District,
the Honorable Dann E. Greenwood, Judge.
REVERSED.
Opinion of the Court by Crothers, Justice.
Chad R. McCabe, Bismarck, ND, for petitioner and appellant.
Michael T. Pitcher, Assistant Attorney General, Bismarck, ND, for respondent
and appellee.
Kirkpatrick v. NDDOT
No. 20230085
Crothers, Justice.
William Kirkpatrick appeals from a district court judgment affirming the
North Dakota Department of Transportation’s suspension of his driving
privileges for one year for driving under the influence. Kirkpatrick argues the
Department lacked authority to suspend his driving privileges because the
arresting officer failed to forward to the Department the results of an
analytical blood test report performed at the request of the officer. We reverse
the district court’s judgment affirming the Department’s decision suspending
Kirkpatrick’s driving privileges for one year.
I
On November 4, 2022, a Bowman police officer stopped Kirkpatrick for
driving without illuminated taillights. After observing signs of impairment,
the officer arrested Kirkpatrick and performed two chemical breath tests. The
first test showed an alcohol concentration of 0.162, and the second test showed
a concentration of 0.155. The officer completed a report and notice, issued
Kirkpatrick a temporary operator’s permit, and provided him with a copy of
the test results.
After the breath tests, Kirkpatrick informed the officer that he had taken
prescription medication while consuming alcohol. At the officer’s request,
Kirkpatrick consented to a blood test. The officer submitted the resulting blood
sample to the state crime laboratory and requested analysis for both alcohol
and drugs. On November 7, 2022, the officer submitted a certified report to the
Department, showing the officer had reasonable grounds to believe
Kirkpatrick was driving under the influence, showing Kirkpatrick was legally
arrested, documenting that the officer performed two breath tests on
Kirkpatrick, and providing the breath test results.
On November 8, 2022, Kirkpatrick requested an administrative hearing.
The Department scheduled a hearing in December and, on November 15, 2022,
provided Kirkpatrick with the hearing issues and documents the Department
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intended to offer as evidence. On November 21, 2022, the officer received the
analytical blood report showing an alcohol concentration of .132 grams per 100
milliliters. On November 23, 2022, the officer sent the analytical blood report
to the State’s attorney but did not forward it to the Department.
At the administrative hearing Kirkpatrick argued the Department
lacked jurisdiction to suspend his driving privileges because the officer failed
to forward the analytical blood report to the Department. The hearing officer
found the certified report provided the Department with authority to conduct
suspension proceedings, and the officer’s failure to provide the blood results to
the Department did not deprive the Department of its authority to suspend
Kirkpatrick’s driving privileges.
The Department suspended Kirkpatrick’s driving privileges for one year.
Kirkpatrick appealed to the district court, which affirmed the Department’s
decision. Kirkpatrick timely appeals.
II
Kirkpatrick argues the officer’s failure to forward the report from the
analytical blood test performed at the request of the officer deprived the
Department of its authority to suspend his driving privileges.
The Administrative Agencies Practice Act governs the review of the
Department’s decision to suspend a driver’s license. N.D.C.C. ch. 28-32. In an
appeal from a district court’s review of the Department’s decision, this Court
reviews the Department’s decision. See Christianson v. Henke, 2020 ND 76,
¶ 6,
941 N.W.2d 529. We give deference to the Department’s findings of fact
and review legal conclusions de novo.
Id. We must affirm the Department’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 chapter 28-32 have not been complied with in
the proceedings before the agency.
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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. The issue in this case relates to whether the hearing
officer’s decision was in accordance with the law.
“A public administrative body has such adjudicatory jurisdiction as is
conferred on it by statute. The jurisdiction of an administrative agency is
dependent upon the terms of the statute and must meet at least the basic
mandatory provisions of the statute before jurisdiction is established.”
Schwind v. Director, N.D. Dep’t of Transp., 462 N.W.2d 147, 150 (N.D. 1990)
(cleaned up). “This Court has previously discussed whether certain provisions
of N.D.C.C. § 39-20-03.1 are basic and mandatory provisions that require
compliance before the Department is authorized to suspend a person’s driving
privileges.” Wampler v. N.D. Dep’t of Transp.,
2014 ND 24, ¶ 7,
842 N.W.2d
877. “Whether the provision is basic and mandatory rests primarily on whether
the Department’s authority is affected by failure to apply the provision.”
Morrow v. Ziegler,
2013 ND 28, ¶ 9,
826 N.W.2d 912.
The words “jurisdiction” and “authority” mean different things. Yet, some
of our earlier cases seemingly used the terms interchangeably when discussing
whether a statutory requirement was basic and mandatory. See e.g., Schwind,
462 N.W.2d at 150 (we have stated “[t]he jurisdiction of an administrative
agency is dependent upon the terms of the statute and must meet at least the
basic mandatory provisions of the statute before jurisdiction is established”)
(cleaned up); Wingerter v. N.D. Dep’t of Transp.,
530 N.W.2d 362, 365 (N.D.
1995) (“We hold that the Department had jurisdiction to suspend Wingerter’s
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license.”); Dworshak v. Moore, 1998 ND 172, ¶ 9,
583 N.W.2d 799 (“The issue
we face, therefore, is whether the failure of the officer to comply with N.D.C.C.
§ 39-20-04(1), deprives the Department of jurisdiction to revoke Dworshak’s
driving privileges.”); Koenig v. N.D. Dep’t of Transp.,
2005 ND 95, ¶ 15,
696
N.W.2d 534 (officer’s failure to provide Department with operator’s license
“does not destroy the Director’s jurisdiction to suspend a violator’s driving
privileges”); but see, Schwind,
462 N.W.2d at 151 (“the Director’s jurisdiction
was properly exercised”); Bosch v. Moore,
517 N.W.2d 412, 413 (N.D. 1994)
(stating “officer’s failure to submit the Intoxilyzer test records deprived DOT
of authority to suspend Bosch’s driving privileges”); Larson v. Moore,
1997 ND
227, ¶ 10,
571 N.W.2d 151 (officer’s failure to comply with statute deprived
Department of “authority to suspend”); Keller v. N.D. Dep’t of Transp.,
2015
ND 9, ¶ 13,
858 N.W.2d 316 (forwarding results of drug analytical report to
Director was not required “to confer authority on the Department to suspend
an individual’s driving privileges”).
We explained in Environmental Law & Policy Center v. North Dakota
Public Service Commission, 2020 ND 192, ¶ 11,
948 N.W.2d 838, that the term
“jurisdiction” has three components in the administrative law context:
“(1) personal jurisdiction, referring to the agency’s authority over
the parties and intervenors involved in the proceedings; (2) subject
matter jurisdiction, referring to the agency’s power to hear and
determine the causes of a general class of cases to which a
particular case belongs; and (3) the agency’s scope of authority
under statute.”
Here, the Department has jurisdiction to suspend an operator’s license
because the legislature granted it that power in N.D.C.C. ch. 39-20. The issue
in this case is whether the Department’s jurisdiction has been invoked through
filings meeting the basic and mandatory requirements of applicable law.
Otherwise stated, once the Department’s jurisdiction has been invoked, it is
authorized to conduct proceedings to suspend an operator’s license if law
enforcement has provided it with the information essential to showing
suspension may be warranted under the law. In this context, “authority” means
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“the official right or permission to act.” Black’s Law Dictionary, 163 (11th ed.
2019).
Chapter 39-20 gives the Department jurisdiction to suspend operator’s
licenses of individuals driving under the influence of alcohol, and N.D.C.C. §
39-20-04.1 provides the Department with authority to suspend a license.
Section 39-20-03.1(4), N.D.C.C., provides the following procedure:
“[t]he law enforcement officer, within five days of the issuance of
the temporary operator’s permit, shall forward to the director a
certified written report in the form required by the director. If the
individual was issued a temporary operator’s permit because of the
results of a test, the report must show that the officer had
reasonable grounds to believe the individual had been driving or
was in actual physical control of a motor vehicle while in violation
of section 39-08-01, or equivalent ordinance, that the individual
was lawfully arrested, that the individual was tested for alcohol
concentration under this chapter, and that the results of the test
show that the individual had an alcohol concentration of at least
eight one-hundredths of one percent by weight or, with respect to
an individual under twenty-one years of age, an alcohol
concentration of at least two one-hundredths of one percent by
weight. In addition to the operator’s license and report, the law
enforcement officer shall forward to the director a certified copy of
the operational checklist and test records of a breath test and a
copy of the certified copy of the analytical report for a blood or urine
test for all tests administered at the direction of the officer.”
(Emphasis added.)
The parties do not dispute that the officer complied with N.D.C.C. § 39-
20-03.1(4) by forwarding to the Department a report and notice and both
breath test results, all within five days of the issuance of the temporary
operator’s permit. They also agree that, without more, by providing these items
to the Department, the Department had authority under N.D.C.C. § 39-20-
03.1(4) to suspend Kirkpatrick’s driving privileges. However, the parties
disagree whether the Department retained that authority when the officer
failed to forward to the Department the subsequently received analytical blood
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report. Thus, our task is to determine the effect on an otherwise proper
administrative suspension proceeding when an additional blood-alcohol test
result from a test performed at the direction of an officer exists but was not
submitted to the Department. That is a question of law, which we review de
novo. See Christianson, 2020 ND 76, ¶ 6.
In Bosch, the driver was arrested for driving under the influence (DUI)
and administered two Intoxilyzer breath tests and a urine test. 517 N.W.2d at
412. The officer discarded the Intoxilyzer test results because they were invalid
due to a deviation from each other of more than 0.02%.
Id. Only the analytical
report from the urine test was submitted to the Department.
Id. We held
N.D.C.C. § 39-20-03.1(3)1 required that the officer provide the Department
with “all tests,” which was basic and mandatory to the Department having
authority to suspend Bosch’s license. Id. at 413. The officer’s failure to provide
the Department with the invalid Intoxilyzer test results “deprived DOT of
authority to suspend Bosch’s driving privileges.” Id.
In Wingerter, the driver was arrested for DUI and consented to a blood
test. 530 N.W.2d at 363. A certified copy of Wingerter’s analytical report was
forwarded to the Department; however, it was discovered at the administrative
hearing that the analyst at the state toxicologist’s office actually performed two
tests of the blood but only filed a report from one of the tests.
Id. at 363-64. The
other report was not submitted to the Department because the test “‘went out
of range,’ due to human error,” and according to the approved method, needed
to be repeated.
Id. at 364. A Department hearing officer suspended Wingerter’s
license and a district court reversed because all tests were not submitted to the
Department as required by Bosch.
Id. This Court reversed, holding test result
reports from an Intoxilyzer machine and an analyst at the state toxicologist’s
office stand on different footing.
Id. at 365. In the latter case, the statute
“requires the officer to forward ‘a certified copy of the operational checklist and
test records,’ but for urine, saliva, and blood tests, it requires only ‘a copy of
1 Section 39-20-03.1(3) is the predecessor statue to N.D.C.C. § 39-20-03.1(4). 2009 N.D. Sess. Law ch.
340, § 1. The old and new subsections are substantively the same.
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the certified copy of the analytical report,’ filled out by the State Toxicologist.”
Id.
In Maher v. North Dakota Department of Transportation, the driver was
arrested for DUI and agreed to a blood test. 539 N.W.2d 300, 301 (N.D. 1995).
The first blood draw attempt resulted in no blood being drawn into the
collection tube, so the tube and collection kit were discarded.
Id. A second blood
draw attempt was successful and resulted in the state toxicologist submitting
a certified copy of an analytical report.
Id. A hearing officer suspended Maher’s
license and a district court reversed after concluding “the Department’s failure
to forward the first blood collection kit divested it of jurisdiction to suspend
Maher’s driver’s license.”
Id. This Court reversed, holding:
“The analytical reports for a blood test are the ‘results’ we
spoke of in Bosch. The hearing officer found no blood had entered
the first vacutainer tube. It is impossible to obtain the analytical
report of a blood test from a vacutainer tube without any blood in
it. Therefore, N.D.C.C. § 39-20-03.1 does not require an officer to
forward an opened, empty blood collection kit to the Director of the
Department of Transportation. As the hearing officer stated,
requiring the officer to forward an opened, yet empty test kit would
be a ‘useless and idle gesture.’”
Id. at 302.
In Larson, the driver was arrested for DUI and consented to a blood test.
1997 ND 227, ¶ 2. A first blood draw attempt produced only a small amount of
blood. Id. ¶ 3. That sample was discarded and a second sample was drawn and
submitted to the state toxicologist. Id. A hearing officer suspended Larson’s
license and a district court affirmed. Id. at ¶ 4. Larson argued on appeal that
the Department did not have authority to suspend his operating privileges
based on Bosch because the officer was required to submit to the Department
“all tests administered at the direction of the officer.” Id. at ¶ 8. The
Department argued the disposition should be guided by the holdings in Maher
and Wingerter. Id. at ¶ 9. This Court agreed with Larson by equating the first
blood sample to “a test.” Id. at ¶ 10. As a result, “[t]he officer’s failure to submit
the first sample for testing to obtain an analytical report as required by
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N.D.C.C. § 39-20-03.1(3) deprived the Department of authority to suspend
Larson’s driver’s license.” Id.
In Koenig, the driver was arrested for DUI and submitted to an
Intoxilyzer breath test. 2005 ND 95, ¶ 2. Koenig put chewing tobacco in his
mouth after providing the first of two breath samples. Id. at ¶ 3. A second
sample was not taken due to the foreign substance in Koenig’s mouth, and no
results were recorded from the first breath test. Id. The officer also testified
that the Intoxilyzer printer malfunctioned during the first breath test so no
record of the test could have been produced even if a valid test had been
generated. Id. After the 20-minute wait, a second set of two breath samples
was completed, and the results were printed and submitted to the Department.
Id. at ¶ 4. The hearing officer suspended Koenig’s license and a district court
reversed because all Intoxilyzer test results were not submitted to the
Department. Id. at ¶ 5. This Court reversed, concluding Bosch and Larson were
not controlling because the officer “did not discard any test results or otherwise
make a judgment on the validity of any tests administered to Koenig. Every
available record of test results was forwarded to the Department.” Id. at ¶ 14.
In Keller, the driver was arrested for DUI and agreed to a blood draw.
2015 ND 9, ¶ 2. A blood sample was obtained and tested by the state crime
laboratory for alcohol and certain drugs. The lab provided the arresting officer
with an alcohol analytical report, and the officer provided that report and other
documents to the Department.
Id. The arresting officer did not provide the
Department with a copy of Keller’s drug analytical report, which showed the
presence of hydrocodone. Id. at ¶¶ 2-3. The hearing officer suspended Keller’s
license, and a district court affirmed. Id. at ¶ 3. On appeal, Keller claimed
forwarding the drug analytical report to the Department was basic and
mandatory and without that action the Department did not have authority to
suspend his license. Id. at ¶ 6. This Court affirmed, concluding the lab tested
one blood sample for alcohol and drugs, the Department only has authority to
suspend a driver’s license for alcohol intoxication, and “[o]nly alcohol tests
show alcohol concentration.” Id. at ¶ 12. Therefore, “it would make no sense to
require the forwarding of drug tests to the director, when the director would
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have no authority to sanction the driver based on the result of the test under
N.D.C.C. § 39-20-04.1.” Id.
Here, the officer submitted the blood sample taken at his request to the
state crime laboratory to test for alcohol and drugs. Under the holdings in
Keller and Wingerter, the officer’s failure to provide the Department with
Kirkpatrick’s analytical drug test report does not affect the Department’s
authority to suspend a driver’s license due to alcohol intoxication. Wingerter,
530 N.W.2d at 365; Keller,
2015 ND 9, ¶ 13. Conversely, under the holdings in
Bosch and Maher, the records from all alcohol tests are basic and mandatory.
Bosch,
517 N.W.2d at 413; Maher,
539 N.W.2d at 302. The officer is required to
provide the Department with all “test records of a breath test and a copy of the
certified copy of the analytical report for a blood or urine test for all tests
administered at the direction of the officer.” N.D.C.C. § 39-20-03.1(4). The
officer’s failure to provide the records of all alcohol-related tests administered
at his direction “deprived DOT of authority to suspend Bosch’s driving
privileges.” Bosch, at 413. In Maher we clarified that “[t]he analytical reports
for a blood test are the ‘results’ we spoke of in Bosch.” Maher at 302. Therefore,
under Bosch and Maher, Kirkpatrick’s alcohol-related breath and blood test
results needed to be provided to the Department, and without them the
Department did not have authority to suspend Kirkpatrick’s driver’s license.
III
We reverse the district court’s judgment affirming the Department’s
decision to suspend Kirkpatrick’s driving privileges for one year.
Jon J. Jensen, C.J.
Daniel J. Crothers
Lisa Fair McEvers
Jerod E. Tufte
Douglas A. Bahr
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