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Garcia v. Levi

Supreme Court of North Dakota

August 31, 2016

Benjamin Becerra Garcia, Appellant
v.
Grant Levi, Director of the North Dakota Department of Transportation, Appellee

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

          Thomas F. Murtha IV, for appellant.

          Michael T. Pitcher, Office of the Attorney General, for appellee.

          OPINION

          SANDSTROM, JUSTICE.

         [¶ 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 affirm.

         I

         [¶ 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 privileges.

         [¶ 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 decision.

         [¶ 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. § 28-32-49.

         II

         [¶ 8] We review the administrative revocation of a driver's license under N.D.C.C. § 28-32-46. This Court ...


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