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Jonathan Thomas Kasowski v. Director

May 12, 2011

JONATHAN THOMAS KASOWSKI,
PETITIONER AND APPELLANT
v.
DIRECTOR, NORTH DAKOTA DEPARTMENT OF TRANSPORTATION,
RESPONDENT AND APPELLEE



Appeal from the District Court of Cass County, East Central Judicial District, the Honorable Steven L. Marquart, Judge.

The opinion of the court was delivered by: Kapsner, Justice.

N.D. Supreme CourtKasowski v. N.D. Dep't of Transportation,

2011 ND 92

This opinion is subject to petition for rehearing. [Go to Documents] [Download as WordPerfect]

AFFIRMED.

Opinion of the Court by Kapsner, Justice.

Kasowski v. N.D. Dep't of TransportationNo. 20100232

[¶1] Jonathan Thomas Kasowski appealed the revocation of his driving privileges by the North Dakota Department of Transportation ("DOT") and the district court judgment affirming the revocation. Kasowski's driving privileges were revoked for four years after he refused to submit to a chemical test for intoxication. The DOT hearing officer's finding that Kasowski decided against speaking to an attorney was supported by the record. Accordingly, Kasowski was not denied a reasonable opportunity to speak to an attorney before his decision on whether to submit to a chemical test for intoxication. We affirm.

I [¶2] West Fargo Police Officer Tyler Williams stopped a vehicle driven by Kasowski after observing the vehicle cross over the center line on Interstate 94 several times without signaling. While speaking to Kasowski, Officer Williams detected the odor of alcohol and observed Kasowski's glossy eyes, slurred speech, and slow mannerisms. Officer Williams asked Kasowski if he had been drinking alcohol, and Kasowski responded that he had not been drinking. Officer Williams asked Kasowski to exit the vehicle and go to Officer Williams' patrol vehicle. Officer Williams performed a pat-down search on Kasowski before he directed Kasowski to the back seat of the patrol vehicle. Kasowski sat in the back seat of the patrol vehicle, which was locked from the outside so he could not leave without assistance from someone outside the vehicle. Officer Williams asked Kasowski if he had been drinking alcohol and told him not to lie. Kasowski stated he wanted to speak to his attorney about that. Officer Williams read North Dakota's implied consent advisory, requested Kasowski submit to an S-D5 breath test, and arrested Kasowski when he refused. Officer Williams did not conduct any field sobriety tests because he believed Kasowski would refuse to perform the tests after requesting to speak to an attorney. In the sally port of the Cass County jail, the issue of Kasowski calling an attorney was raised, and Kasowski said something about not being able to get ahold of an attorney at that time of night. There was no further discussion about Kasowski contacting an attorney. Officer Williams repeated the North Dakota implied consent advisory, and Kasowski refused to submit to an Intoxilyzer, an evidentiary chemical test for intoxication.

[¶3] An administrative hearing was held before a DOT hearing officer, and the only testimony given was by Officer Williams. The hearing officer concluded Kasowski was not under arrest when he first requested to speak to an attorney and had no right to speak to an attorney at that time. The hearing officer found Kasowski, while under arrest at the jail, decided against attempting to contact an attorney. The hearing officer concluded Kasowski was not denied the reasonable opportunity to speak to an attorney and revoked Kasowski's driving privileges for refusing to submit to a chemical test for intoxication. The district court affirmed the hearing officer's decision.

[¶4] On appeal, Kasowski argues he was effectively under arrest when he requested to speak with an attorney and was denied his statutory right to speak with an attorney before deciding whether to submit to an Intoxilyzer. The DOT argues Kasowski was subjected to an investigatory detention when he requested to speak to an attorney, was not under arrest, and had no right to speak to an attorney at that time. Kasowski also argues the hearing officer erroneously found he decided against contacting an attorney while sitting in the patrol vehicle in the sally port of the jail. The DOT argues Officer Williams reasonably interpreted Kasowski's statements as a decision against trying to contact an attorney before deciding whether to submit to the Intoxilyzer.

II [¶5] This Court reviews the administrative revocation and suspension of driving privileges under the Administrative Agencies Practice Act, N.D.C.C. ch. 28-32. Lange v. Dep't of Transp., 2010 ND 201, ¶ 5, 790 N.W.2d 28 (citing Abernathey v. Dep't of Transp., 2009 ND 122, ¶ 6, 768 N.W.2d 485). We must affirm the administrative 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. Our review of an administrative agency's decision is limited:

We do not make independent findings of fact or substitute our judgment for that of the agency when reviewing an administrative agency's factual findings. We determine only whether a reasoning mind reasonably could have determined the factual conclusions reached were proved by the weight of the evidence from the entire record. If the hearing officer's findings of fact are supported by a preponderance of the evidence, the conclusions of law are sustained by the findings of fact, and the decision is supported by the conclusions of law, we will not ...


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