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Castillo v. Levi

Supreme Court of North Dakota

December 20, 2016

Josue Castillo, Appellee
v.
Grant Levi, Director, North Dakota Department of Transportation, Appellant

         Appeal from the District Court of Walsh County, Northeast Judicial District, the Honorable M. Richard Geiger, Judge.

         REVERSED AND REINSTATED.

          Deanna F. Longtin, for appellee.

          Michael T. Pitcher, for appellant.

          OPINION

          Sandstrom, Justice.

         [¶ 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.

         I

         [¶ 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.

         II

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


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