from the District Court of Stark County, Southwest Judicial
District, the Honorable Zane Anderson, Judge.
F. Murtha IV, Dickinson, ND, for petitioner and appellant.
T. Pitcher, Office of the Attorney General, Bismarck, ND, for
respondent and appellee.
J. Crothers, Lisa Fair McEvers, Carol Ronning Kapsner, Dale
V. Sandstrom, Gerald W. VandeWalle, C.J. Opinion of the Court
by Crothers, Justice.
J. Crothers, Justice
[¶1] Bo Daniel Schmidt appeals from a
district court judgment affirming a Department of
Transportation hearing officer's decision to suspend his
driving privileges. Schmidt argues the implied consent
advisory was misleading, the chemical test was a warrantless
search and North Dakota's refusal statute is
unconstitutional. We affirm.
[¶2] Dickinson Police Sergeant Mike Hanel
arrested Schmidt for driving under the influence after
observing Schmidt's vehicle traveling in the wrong lane
and weaving towards a curb. Hanel stopped Schmidt and smelled
alcohol in the vehicle. Schmidt admitted he had been
drinking. Hanel read Schmidt the North Dakota implied consent
advisory and requested he take an onsite alcohol screening
test. Schmidt agreed. The test result showed Schmidt had a
blood alcohol concentration of .124 percent and Hanel
arrested him for driving under the influence.
[¶3] At the police station Hanel placed
Schmidt in an interview room with a cell phone and phone
book. After twenty minutes Hanel advised Schmidt a second
time of the implied consent advisory and requested Schmidt
take a chemical breath test. Schmidt again agreed. The test
result showed Schmidt had an alcohol concentration of .124
percent. The hearing officer found Schmidt had a blood
alcohol concentration of at least eight one-hundredths of one
percent by weight in violation of N.D.C.C. § 39-08-01.
The Department of Transportation hearing officer suspended
Schmidt's driving privileges for 91 days and the Stark
County district court affirmed.
[¶4] Schmidt argues the implied consent
advisory was misleading because it failed to inform him of
his right to refuse the chemical test. On appeal from the
district court's decision in an administrative appeal
this Court reviews the agency
order in the same manner as the district court. N.D.C.C.
§ 28-32-49. We must affirm an ...