from the District Court of Stark County, Southwest Judicial
District, the Honorable William A. Herauf, Judge.
F. Murtha IV, for appellant.
Michael T. Pitcher, Office of the Attorney General, for
1] Benjamin Garcia appeals from a district court judgment
affirming a Department of Transportation hearing
officer's decision revoking his driving privileges for
180 days. We conclude a police officer's initial approach
of Garcia's parked vehicle was not a seizure and a
reasonable and articulable suspicion supported the
officer's further investigation. We also conclude North
Dakota's test refusal statute and implied consent laws
are not unconstitutional as applied in this case, because
Garcia refused the police officer's warrantless request
to take a chemical breath test after he had been arrested. We
2] On April 7, 2015, at about 1:32 a.m., a Dickinson police
officer responded to a dispatch call about a male in a silver
pickup with no plates screeching the tires and driving around
a motel parking lot. The report had come from an unidentified
caller at the motel. When the officer arrived at the motel,
he located a parked pickup with no license plates matching
the general description in the report. The officer parked his
patrol vehicle several car lengths away from the pickup
without activating his emergency lights and approached the
vehicle on foot. The officer observed the driver, later
identified as Garcia, sitting in the pickup's
driver's seat with the engine running and lights on.
3] Once the officer reached the pickup, he asked Garcia to
roll down the window and to shut off the vehicle's
engine, which Garcia did. The officer could smell a strong
odor of alcohol coming from the pickup and observed that
Garcia had bloodshot, watery eyes and slurred speech. The
officer also observed an open bottle of beer in the back
passenger seat. When the officer asked Garcia for his
driver's license, Garcia initially gave him a motel key.
After asking again, Garcia handed the officer his license.
4] The officer asked Garcia to step out of the pickup, and
Garcia complied. When the officer asked Garcia whether he had
been drinking, Garcia said that he had had two beers. The
officer requested Garcia to perform field sobriety tests.
Garcia initially answered questions appropriately regarding
the horizontal gaze nystagmus test but indicated he had an
eye problem, so the officer did not go forward with that
test. When the officer attempted to have him perform other
field sobriety tests, Garcia appeared not to understand the
instructions. The officer observed Garcia swaying while
standing and having a hard time keeping his balance. The
officer asked Garcia to take an onsite screening breath test,
which Garcia refused.
5] The officer placed Garcia under arrest for being in the
actual physical control of a motor vehicle while under the
influence of alcohol and for refusal of the breath test.
After transporting Garcia to the law enforcement center, the
officer read him the implied consent advisory. The officer
asked Garcia to take a breath test with the Intoxilyzer 8000.
Garcia refused. The officer issued a report and notice,
including a temporary operator's permit, notifying Garcia
of the Department's intent to revoke his driving
6] Garcia requested an administrative hearing, which was held
before a Department hearing officer, and Garcia was permitted
to testify with an interpreter. The hearing officer
subsequently issued findings of fact, conclusions of law, and
a decision revoking Garcia's driving privileges for 180
days. Garcia petitioned for reconsideration of the hearing
officer's decision, which was denied. Garcia appealed to
the district court, which affirmed the Department's
7] The appeal to the district court was timely under N.D.C.C.
§ 28-32-42. The district court had jurisdiction under
N.D. Const. art. VI, § 8, and N.D.C.C. § 28-32-46.
The appeal from the district court was timely under N.D.C.C.
§ 28-32-49, and this Court has jurisdiction under N.D.
Const. art. VI, §§ 2 and 6, and N.D.C.C. §
8] We review the administrative revocation of a driver's
license under N.D.C.C. § 28-32-46. This Court ...