from the District Court of Walsh County, Northeast Judicial
District, the Honorable M. Richard Geiger, Judge.
F. Longtin, for appellee.
Michael T. Pitcher, for appellant.
1] The Department of Transportation appeals from a district
court judgment reversing a Department order revoking Josue
Castillo's driving privileges for 180 days for refusing
to submit to onsite screening and chemical tests. We reverse
the district court, concluding the Department could still
administratively revoke driving privileges when the officer
had not told the driver that the refusal of the onsite breath
test could be cured by submitting to a subsequent chemical
test. We reinstate the Department's order revoking
Castillo's driving privileges for 180 days.
2] On September 27, 2015, at about 2:15 a.m., a Grafton
police officer stopped Castillo after observing he failed to
stop at a stop sign. The officer testified he could smell an
odor of alcohol coming from inside the vehicle and asked
Castillo to accompany him to the front seat of his patrol
vehicle. The officer testified Castillo admitted consuming
four mixed drinks and said he was coming from a bar.
According to the officer, Castillo's eyes were bloodshot
and watery and his speech seemed slurred. Castillo declined
field sobriety testing, stating he would fail because he just
had a mixed drink at the bar.
3] The officer read Castillo the North Dakota implied consent
advisory and asked him to submit to an onsite screening test.
The officer testified Castillo was hesitant to consent and
asked to speak to a lawyer. The officer advised Castillo he
could call a lawyer, but Castillo remained silent. The
officer told him he would need a "yes or no answer"
about the onsite screening test. The officer again told
Castillo he could call a lawyer, but Castillo did not do so.
The officer testified Castillo refused the onsite screening
test, stating he "just had a drink and he would fail
that test." The officer arrested Castillo for driving
under the influence and handcuffed and placed him in the
patrol vehicle's rear seat.
4] The officer again read Castillo the implied consent
advisory, informing him that refusal to submit to a chemical
test is a crime punishable in the same manner as driving
under the influence and that refusal may result in his
driving privileges being revoked for 180 days up to three
years. Castillo ultimately refused the officer's
post-arrest request for a chemical test. Although the officer
read Castillo the implied consent advisory, he did not inform
Castillo he could remedy his refusal to take the onsite
screening test by submitting to a subsequent chemical test.
Castillo was charged with driving under the influence. The
officer also issued Castillo a report and notice, including a
temporary operator's permit, notifying Castillo of the
Department's intent to revoke his driving privileges.
5] Castillo requested an administrative hearing. At the
hearing, the hearing officer addressed Castillo's
refusals to submit to requests for an onsite screening test
and for a subsequent chemical test. The hearing officer said
2015 amendments to N.D.C.C. § 39-08-01(2) require a
police officer to inform a driver of the ability to remedy a
prior refusal of an onsite screening test by taking a
subsequent chemical test for the same incident. The hearing
officer concluded the 2015 amendments did not provide a
remedy in an administrative proceeding if an officer failed
to advise the driver of the ability to cure and did not
create a new "right" for drivers. The hearing
officer also found Castillo had provided no evidence he
suffered prejudice by the police officer's failure to
include the remedy language. The hearing officer revoked
Castillo's driving privileges for 180 days.
6] The district court reversed the Department's order,
concluding the hearing officer had misinterpreted the
statutes. The court held the legislature intended a driver
who refuses the onsite test be advised of the remedy language
in N.D.C.C. § 39-08-01(2). The court reasoned the
statute governing screening tests manifests a legislative
intent to allow an individual to avoid the consequences of a
refusal and an individual cannot "knowingly cure [an
onsite refusal] without being aware of the remedy." The
court held it was "reasonable" for Castillo to
conclude no benefit existed to taking the chemical test after
his arrest since he had not been given the curative advisory.
The court ruled the hearing officer erred in concluding the
police officer's omission of the remedy language was
inconsequential and non-prejudicial.
7] Castillo's appeal from the administrative agency
decision to the district court was timely under N.D.C.C.
§ 39-20-06. The district court had jurisdiction under
N.D. Const. art. VI, § 8, and N.D.C.C. § 28-32-46.
The Department's appeal from the district court was
timely under N.D.C.C. § 28-32-49. This Court has
jurisdiction under N.D. Const. art. VI, § 6, and
N.D.C.C. § 28-32-49.
8] This Court reviews the administrative revocation of a
driver's license under N.D.C.C. § 28-32-46. This