Appeal from the District Court of Stark County, Southwest Judicial District, the Honorable Dann E. Greenwood, Judge.
Thomas F. Murtha IV, Dickinson, N.D., for petitioner and appellant.
Michael T. Pitcher, Office of Attorney General, Bismarck, N.D., for defendant and appellee.
Daniel J. Crothers, Lisa Fair McEvers, Carol Ronning Kapsner, Dale V. Sandstrom, Gerald W. VandeWalle, C.J.
[¶1] Ronald Dale McCoy appeals from a district court judgment affirming a Department of Transportation decision suspending his driving privileges for 180 days. We affirm because McCoy consented to take the chemical breath test given by the law enforcement officer and McCoy's constitutional rights were not violated as a matter of law by North Dakota's implied consent law.
[¶2] In March 2013, a Stark County sheriff's deputy stopped a vehicle that appeared to not have a light illuminating the license plate. The vehicle was driven by McCoy. While speaking with McCoy, the deputy noticed an odor of alcohol and McCoy's eyes appeared bloodshot and watery. McCoy admitted he had been drinking
earlier in the day, but no evidence was presented about how much or at what time the alcohol had been consumed. McCoy agreed to field sobriety testing. Although McCoy passed the walk-and-turn test, he failed the horizontal gaze nystagmus test and the one-legged-stand test. After McCoy failed the tests, the deputy gave the North Dakota implied consent advisory, requested McCoy take an onsite screening test and administered an onsite breath test. This test showed an alcohol concentration of .196. The deputy arrested McCoy for driving a vehicle while under the influence of intoxicating liquor.
[¶3] The deputy transported McCoy to the law enforcement center and again read McCoy the implied consent advisory. McCoy agreed to take the chemical breath test. The deputy administered the Intoxilyzer 8000, which revealed an alcohol concentration of .203. The deputy issued McCoy a report and notice of the Department's intent to suspend his driving privileges. McCoy requested an administrative hearing.
[¶4] In April 2013, a hearing was held before a Department hearing officer, who subsequently issued findings of fact, conclusions of law and a decision suspending McCoy's driving privileges for 180 days. The hearing officer found McCoy agreed to take a chemical breath test:
" After transport to the law enforcement center, the implied consent advisory was given and Mr. McCoy agreed to take a chemical breath test. Deputy Sarnicki is certified to administer the Intoxilyzer 8000. Deputy Sarnicki administered the Intoxilyzer 8000 according to the state toxicologist's approved method at 11:52 PM. The result was .203 AC. The report and notice was issued to Mr. McCoy."
Addressing McCoy's argument that North Dakota's implied consent law violates his constitutional rights, the hearing officer concluded:
" The last objection made by Mr. McCoy is that the implied consent law violates his constitutional protections. The argument in sum is that the Supreme Court of the United States recently issued an opinion from a case out of Missouri [Missouri v. McNeely, 133 S.Ct. 1552, 185 L.Ed.2d 696 (2013)" ]. In that case the Supreme Court determined that a blood sample obtained by force and without a warrant after the Missouri driver had refused to be tested violated the Missouri driver's constitutional rights. There are several important distinctions that must be made. First the blood sample was used in a criminal case against the Missouri driver. This hearing is not a criminal proceeding. Second the Missouri driver had no right of refusal in contrast to North Dakota which allows a right of refusal in regards to the implied consent statutes. Third the issue of consent. The NDCC states any individual who operates a motor vehicle on a highway or on public or private areas to which the public has a right of access for vehicular use in this state is deemed to have given consent, and shall consent, subject to the provisions of this chapter. Mr. McCoy argues that this is not freely given consent, that it is in fact coerced consent which is not allowed as an exception to a warrantless search. The right to drive is not a constitutional right, it is a privilege."
[¶5] McCoy appealed to the district court, which affirmed the hearing officer's decision.
[¶6] This Court reviews the Department's decision to suspend a person's driving privileges under the Administrative
Agencies Practice Act, N.D.C.C. ch. 28-32.
Painte v. Dir., Dep't of Transp., 2013 ND 95, ¶ 6, 832 N.W.2d 319. When an administrative agency's decision is appealed from the district court, we review the agency's decision. Id. Generally, " [c]ourts exercise limited review in appeals from administrative agency decisions, and the agency's decision is accorded great deference." Id. (citation omitted). This Court reviews an agency's decision under N.D.C.C. § 28-32-49 in the same manner as the district court under N.D.C.C. § 28-32-46. Painte, at ¶ 6.
[¶7] We must affirm the agency's decision ...