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YellowBird v. North Dakota Department of Transportation

Supreme Court of North Dakota

July 18, 2013

Glen Lee YellowBird, Petitioner and Appellant
v.
North Dakota Department of Transportation, Respondent and Appellee

Appeal from the District Court of Burleigh County, South Central Judicial District, the Honorable David E. Reich, Judge.

Chad R. McCabe, for petitioner and appellant.

Douglas B. Anderson, Office of Attorney General, for respondent and appellee.

OPINION

Kapsner, Justice.

[¶ 1] Glen YellowBird appeals from a district court judgment affirming the North Dakota Department of Transportation's revocation of his driving privileges for one year. Because we conclude the plain language of N.D.C.C. § 39-20-14 does not require the officer requesting the on-site screening test to be certified to administer the test, we affirm the district court judgment affirming the Department's revocation of YellowBird's driving privileges.

I

[¶ 2] In August 2012, YellowBird was arrested after being stopped for a traffic violation. During the stop, YellowBird refused the on-site breath test. He later refused to take the Intoxilyzer test. YellowBird was issued a Report and Notice that his driving privileges may be revoked, and he requested a hearing.

[¶ 3] At the hearing, Officer Jessica Helgeson, a "recruit officer" with authority to stop and arrest, testified she was on patrol with her field training officer, Officer Noah Lindelow. After responding to a call of disorderly individuals in a hotel bar, the officers were told the individuals left in a silver vehicle. The officers found the vehicle and pulled it over after the driver crossed the centerline. Officer Helgeson testified that she spoke with the driver, YellowBird, and he admitted that he had been drinking. A third officer, Officer Lance Allerdings, later arrived on the scene.

[¶ 4] Officer Helgeson asked YellowBird to perform some standardized field sobriety tests, which YellowBird agreed to. Officer Helgeson conducted the horizontal gaze nystagmus (HGN) test, which the officer concluded YellowBird failed. She then sought to conduct the walk-and-turn test, but after YellowBird stated he recently had knee surgery, Officer Helgeson did not conduct any more standardized field sobriety tests. Officer Helgeson read YellowBird the implied consent advisory and asked him to submit to the on-site breath test, the S-D5. Officer Helgeson testified that YellowBird refused the test, and he was arrested for driving under the influence. Officer Helgeson also testified that either Officer Lindelow or Allerdings would have administered the S-D5 test because she is not certified to administer the test.

[¶ 5] After the arrest, the officers took YellowBird to the law enforcement center. Officer Helgeson testified that she read YellowBird the implied consent advisory in an attempt to utilize the Intoxilyzer test, and YellowBird sought to contact his attorney. According to Officer Helgeson, YellowBird ultimately refused the Intoxilyzer test.

[¶ 6] The hearing officer concluded Officer Helgeson did not correctly administer the HGN test; accordingly, the results were not considered, and the proposed revocation for refusing the Intoxilyzer test was dismissed. The hearing officer further concluded YellowBird refused the S-D5 test, and his driving privileges were revoked.

[¶ 7] YellowBird appealed to the district court. YellowBird argued that because Officer Helgeson was not certified as a chemical test operator, her request for YellowBird to submit to the SD-5 test was unauthorized under N.D.C.C. § 39-20-14, meaning his rejection "could not constitute a refusal for purposes of automatic license revocation." The district court affirmed, holding that the plain language of the statute illustrated "there is absolutely no provision in the statute that the law enforcement officer requesting submission to the onsite chemical screening test be a certified chemical test operator. The statute only requires '[t]he screening test or tests [] be performed by an enforcement officer certified as a chemical test operator....'" YellowBird appealed.

II

[¶ 8] "When reviewing an administrative agency's decision, we determine 'only whether a reasoning mind reasonably could have concluded the findings were supported by the weight of the evidence from the entire record.'" Thorsrud v. Director, N.D. Dep't of Transp., 2012 ND 136, ¶ 7, 819 N.W.2d 483 (quoting Buchholtz v. Director, N.D. Dep't of Transp., 2008 ND 53, ¶ 9, 746 N.W.2d 181). In reviewing an agency decision, "[w]e will not... make independent findings or substitute our judgment." Mees v. N.D. Dep't of Transp., 2013 ND 36, ¶ 9, 827 N.W.2d 345. The ...


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