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Beylund v. Levi

Supreme Court of North Dakota

February 12, 2015

Steve Michael Beylund, Petitioner and Appellant
Grant Levi, Director of the Department of Transportation, Respondent and Appellee

Page 404

[Copyrighted Material Omitted]

Page 405

Appeal from the District Court of Bowman County, Southwest Judicial District, the Honorable William A. Herauf, Judge.

Thomas F. Murtha IV, Dickinson, ND, for petitioner and appellant.

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

Lisa Fair McEvers, Carol Ronning Kapsner, Dale V. Sandstrom, Daniel J. Crothers, Gerald W. VandeWalle, C.J. Opinion of the Court by McEvers, Justice. Opinion of the Court by McEvers, Justice.


Page 406

Lisa Fair McEvers, J.

[¶1] Steve Michael Beylund appeals from a district court judgment affirming a Department of Transportation decision suspending his driving privileges for two years. We affirm concluding Beylund voluntarily consented to the chemical blood test administered by the police officer, and the criminal refusal statute does not violate Beylund's right under the Fourth Amendment or N.D. Const. art. I, § 8, nor does it violate the Fourth Amendment under the doctrine of unconstitutional conditions. We decline to address Beylund's argument regarding the legality of the stop because the issue was not sufficiently articulated in Beylund's specifications of error.


[¶2] On August 10, 2013, a Bowman police officer was dispatched to a call of an unwanted person. The police officer observed a vehicle that matched the given description of the unwanted person's vehicle, although the police officer testified that he " didn't think anything of that at the time." The police officer observed the vehicle nearly hit a stop sign while making a right hand turn into a driveway. The vehicle then stopped, partially in the roadway. The police officer testified he pulled up and stopped behind the vehicle, without activating his patrol car's emergency lights, and approached the vehicle " to make sure everything was fine with the individual or what was going on."

[¶3] According to the police officer's testimony, when he approached the vehicle, he noticed an empty wine glass in the center console and an odor of alcohol emanating from the vehicle. The police officer returned to his patrol car to activate its amber warning lights. The police officer requested Beylund exit the vehicle, but he refused, until the police officer opened the door and commanded him to exit. Beylund struggled with his balance and was generally uncooperative. Beylund refused all field sobriety tests, claiming he had a " bad leg." Beylund agreed to take an onsite screening test, but failed to provide an adequate breath sample. The police officer then arrested Beylund and transported him to the hospital. At the hospital, the police officer read the implied consent advisory to Beylund, and Beylund agreed to take a chemical blood test. A blood sample was collected and submitted to the state laboratory. The test results showed an alcohol concentration of 0.250 g/100ml.

[¶4] In September 2013, a hearing was held before a Department of Transportation hearing officer. At the conclusion of the hearing, the hearing officer found the police officer had reasonable grounds to believe Beylund had been driving a vehicle while under the influence of intoxicating liquor in violation of N.D.C.C. § 39-08-01. Accordingly, the hearing officer suspended Beylund's driving privileges for two years.

[¶5] Beylund petitioned for reconsideration of the hearing officer's decision. Beylund argued the blood test was an unconstitutional warrantless search, without a valid exception to the warrant requirement, and North Dakota's implied consent law violates the unconstitutional conditions doctrine. The hearing officer

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granted Beylund's petition for reconsideration, but denied relief.

[¶6] Beylund filed a notice of appeal and specifications of error with the clerk of district court, appealing the hearing officer's suspension of his driving privileges. Beylund's specifications of error raised the same issues as his petition for reconsideration. However, in Beylund's appellant's brief to the district court, he also asserted the stop of his vehicle was illegal. The district court affirmed the hearing officer's decision. Beylund now appeals to this Court.


[¶7] " 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." McCoy v. N.D. Dep't of Transp., 2014 ND 119, ¶ 6, 848 N.W.2d 659 (citing Painte v. Dir., Dep't of Transp., 2013 ND 95, ¶ 6, 832 N.W.2d 319). " We review the agency's decision on appeal from the district court. However, the district court's analysis is entitled to respect if it is sound." Herrman v. N.D. Dep't of Transp., 2014 ND 129, ¶ 6, 847 N.W.2d 768 (citation omitted) (quotation marks omitted). An agency's decision is accorded great deference, when reviewed on appeal. McCoy, at ¶ 6. Under N.D.C.C. § 28-32-46, we must affirm an administrative agency's decision unless one of the following conditions applies:

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 ...

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