Appeal from the District Court of Burleigh County, South Central Judicial District, the Honorable Bruce A. Romanick, Judge.
The opinion of the court was delivered by: Kapsner, Justice.
Engstrom v. N.D. Department of Transportation,
This opinion is subject to petition for rehearing. [Go to Documents]
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Opinion of the Court by Kapsner, Justice.
[¶1] John Engstrom appeals from a district court judgment affirming the administrative revocation of his driver's license for four years after his arrest for being in actual physical control of a vehicle while under the influence of intoxicating liquor. Because we conclude the police officer in this case had reasonable suspicion to seize and probable cause to arrest Engstrom, we affirm.
[¶2] On September 13, 2010, Officer Peter Czapiewski of the Mandan Police Department responded to a call from dispatch, arriving at the location of a reported incident at approximately 5:00 a.m. and observing a parked vehicle. After approaching the vehicle, Czapiewski identified John Engstrom as its driver. According to Czapiewski, Engstrom had bloodshot eyes and "mush mouth to slow" speech. Czapiewski noted "I did not smell an odor of alcoholic beverage while speaking with him." Czapiewski ordered Engstrom to exit his vehicle and "noticed the door dinged . . . indicating the keys were in the ignition." Engstrom verified the keys were in the ignition. Czapiewski asked Engstrom how much alcohol he had consumed that night. Engstrom "said he had some[,]" though the parties dispute whether this admission was made before or after Engstrom exited his vehicle. Czapiewski requested Engstrom to submit to a horizontal gaze nystagmus ("HGN") test, and Engstrom agreed. Czapiewski determined Engstrom failed the test. Czapiewski next asked Engstrom to submit to an S-D5 intoxilyzer test. After some discussion, Engstrom agreed to take the test. Czapiewski arrested Engstrom for being in actual physical control of a vehicle while under the influence of intoxicating liquor.
[¶3] Czapiewski then requested Engstrom to submit to a blood test for alcohol concentration. Engstrom asked to speak with his attorney, but was unable to reach him by phone. Czapiewski again asked Engstrom to submit to blood testing, and Engstrom verbally refused.
[¶4] Due to Engstrom's refusal, the North Dakota Department of Transportation ("DOT") notified him that it intended to revoke his driving privileges for four years. Engstrom requested an administrative hearing. At a hearing held October 8, 2010, Engstrom argued Czapiewski lacked reasonable and articulable suspicion to order him out of his vehicle, and Czapiewski did not have probable cause to arrest him. Engstrom also objected to the introduction of the S-D5 results, arguing implied consent for onsite breath screening is limited under N.D.C.C. § 39-20-14 to situations involving moving traffic violations or accidents. Because Engstrom had been in a parked vehicle at the time of his arrest, the hearing officer sustained the objection to the S-D5 results. However, the hearing officer found the police officer had reasonable grounds to believe Engstrom was in actual physical control of a vehicle in violation of state law and revoked Engstrom's driving privileges for four years. Engstrom filed a petition for reconsideration, which the hearing officer denied. Engstrom then appealed the administrative decision to the district court, and the court upheld the revocation of his driver's license.
II[¶5] Engstrom argues the DOT should not have revoked his driver's license. Engstrom claims his constitutional rights were violated because Czapiewski did not have reasonable and articulable suspicion to order Engstrom from his car, and ...