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Olson v. North Dakota Department of Transportation

Supreme Court of North Dakota

April 10, 2018

Harold J. Olson, Appellant
v.
North Dakota Department of Transportation, Appellee

          Appeal from the District Court of Morton County, South Central Judicial District, the Honorable Richard L. Hagar, Judge.

          Vance R. Gillette (argued), New Town, ND, for appellant.

          James E. Nicolai (argued) and Michael T. Pitcher (appeared), Office of the Attorney General, Bismarck, ND, for appellee.

          OPINION

          Jensen, Justice.

         [¶ 1] Harold Olson appeals a district court order affirming the North Dakota Department of Transportation's ("Department") revocation of his driving privileges for two years, following an arrest for driving under the influence. We reverse the district court's order and reinstate Olson's driving privileges.

         I

         [¶ 2] A deputy with the Mountrail County Sheriff's Department testified he received a call from a Three Affiliated Tribes, also known as the Mandan, Hidatsa and Arikara Nation ("MHA"), officer on May 13, 2017 requesting assistance with a non-Indian he stopped and detained on tribal land. The MHA officer told the deputy he detained the individual because he was parked in the middle of the road asleep at the wheel. The MHA officer asked the deputy to complete an investigation.

         [¶ 3] The deputy identified the driver as Harold Olson. The deputy noted a strong odor of what appeared to be an alcoholic beverage, administered field sobriety tests, determined he had probable cause to arrest Olson, and then arrested Olson for driving under the influence. The deputy read Olson his Miranda rights and the implied consent advisory. Olson refused to take a breath test. The deputy issued Olson a report and notice form under N.D.C.C. ch. 39-20.

         [¶ 4] Olson timely requested an administrative hearing. At the administrative hearing, the deputy testified that tribal police investigate and arrest an individual for crimes on tribal land, such as driving under the influence, if the individual is an enrolled member of a tribe. The deputy and the MHA officer were not aware Olson was a member of any tribe at the time of the arrest.

         [¶ 5] At the administrative hearing, Olson offered his tribal identification card, which indicated he was a member of the Turtle Mountain Chippewa Tribe. Olson did not have his tribal identification card in his vehicle when the MHA officer stopped him. Olson said he was "pretty sure" he told the MHA officer he was an enrolled member of a tribe. Olson testified he understood a tribal police officer would have investigated him, instead of calling county or state police, if he knew Olson was an enrolled member of a tribe at the time of the stop.

         [¶ 6] The administrative hearing officer concluded the deputy had reasonable grounds to believe Olson was driving or in actual physical control of the vehicle while under the influence of intoxicating liquor and had authority to arrest Olson because of the MHA officer's request for assistance. Olson's driving privileges were thereafter revoked for a period of two years. The district court affirmed the Department's decision finding the deputy was acting under a request for assistance, which extended the deputy's authority to arrest onto tribal land.

         [¶ 7] The parties do not dispute the following facts: (1) Olson was discovered in his vehicle by a MHA officer on tribal land within the Fort Berthold Reservation, (2) the MHA officer requested assistance from the Mountrail County Sheriff's Department, (3) the deputy completed an investigation and arrested Olson for driving under the influence on tribal land within the Fort Berthold Reservation, (4) Olson is an enrolled member of the Turtle Mountain Chippewa Tribe, and (5) the MHA officer and the deputy did not know Olson was an enrolled member at the time of the arrest.

         II

         [¶ 8] This Court reviews an administrative driver's license revocation under N.D.C.C. § 28-32-46. Vanlishout v. N.D. Dep't of Transp., 2011 ND 138, ¶ 12, 799 N.W.2d 397. Proceedings under N.D.C.C. ch. 39-20, which relate to the revocation of driving privileges, are civil in nature and separate from criminal proceedings. Beylund v. Levi, 2017 ND 30, ¶ 17, 889 N.W.2d 907. We must affirm the Department's order for revocation unless:

1. The order is not in accordance with the law.
2. The order is in violation of the constitutional rights of the appellant.
3. The provisions of this chapter have not been complied with in the proceedings ...

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