from the District Court of Burleigh County, South Central
Judicial District, the Honorable Cynthia M. Feland, Judge.
L. Herbel, Bismarck, N.D., for plaintiff and appellant.
Michael T. Pitcher, Assistant Attorney General, Bismarck,
N.D., for defendant and appellee.
1] Tre Thomas Schoon appealed from a district court judgment
affirming a Department of Transportation decision suspending
his driving privileges for two years. Schoon argues that
because he was given an incomplete implied consent advisory,
evidence of his blood test results was inadmissible under
N.D.C.C. § 39-20-01(3)(b). We reverse.
2] In June 2017, Deputy Jeremy Alm was on patrol in Burleigh
County when he observed a vehicle that appeared to be
speeding. Deputy Alm initiated a traffic stop and made
contact with the driver, later identified as Schoon. Deputy
Alm smelled the odor of marijuana coming from the vehicle and
asked Schoon to exit the vehicle. Deputy Alm noticed an odor
of alcohol coming from Schoon's breath and observed that
Schoon appeared to have bloodshot, watery eyes. Schoon
admitted to having drunk two or three beers. Schoon consented
to a search of his vehicle, which revealed two open cans of
beer, one full can of beer, and several empty beer cans in
the box of his pickup. Schoon agreed to perform field
sobriety tests, including the horizontal gaze nystagmus test,
the walk-and-turn test, and the one-leg-stand test. Relying
on the field test results, Deputy Alm read the North Dakota
implied consent advisory and asked Schoon to take a
preliminary breath test. Schoon consented to the breath test.
The test result was higher than the presumptive limit. Deputy
Alm placed Schoon under arrest for driving under the
influence, and read Schoon Miranda rights and an
implied consent advisory. The advisory provided:
As a condition of operating a motor vehicle on a highway, or
on a public or private area, to which the public has [a]
right of access to, you have consented to taking a test to
determine whether you are under the influence of alcohol or
drugs. I must inform you that... North Dakota law requires
you to submit to a chemical test to determine whether you are
under the influence of alcohol. Refusal to take the test as
directed by a law enforcement officer may result in a
revocation of your driver's license for a minimum of 180
days and potentially up to three years. Do you understand
these consequences? Do you consent to take the test that I am
3] Deputy Alm then asked Schoon if he would be willing to
provide a blood sample. Schoon consented.
4] An administrative hearing was held. Schoon moved to
suppress the blood test results because of Deputy Alm's
failure to recite the part of the statutory advisory stating
that refusal to consent to a blood test is a crime punishable
in the same manner as driving under the influence. At the
hearing, Deputy Alm explained that if an individual refuses
the blood test, he then asks for a chemical breath test. If
the driver refuses the breath test, then Alm reads the
section of the statutory advisory explaining that refusal is
punishable in the same manner as DUI. Deputy Alm testified he
did not read the part of the implied consent advisory
indicating that refusal is a crime punishable in the same
manner as DUI, because Schoon consented to the initial
request for a chemical blood test.
5] The hearing officer's written decision denied
Schoon's motion to exclude the evidence of the blood
Deputy Alm recited an implied consent advisory that
accurately stated the consequences of a refusal. The advisory
provided by Deputy Alm to Mr. Schoon satisfied the
requirements of 39-20-01, subsection 3a in light of the
holding in Birchfield, and therefore, the test
results are admissible under subsection 3b. NDCC 39-20-01.
Schoon requested judicial review, and the district court
affirmed the hearing officer's decision that Deputy
Alm's reading of the implied consent advisory fulfilled
the requirements of N.D.C.C. § 39-20-01(3) and the blood
sample was properly obtained.
6] The Administrative Agencies Practice Act, N.D.C.C. ch.
28-32, governs this Court's review of the Department of
Transportation's administrative decision to suspend or
revoke a driver's license. McCoy v. N.D. Dep't of
Transp., 2014 ND 119, ¶ 6, 848 N.W.2d 659. Under
N.D.C.C. § 28-32-46, this Court must affirm the
agency's decision unless:
order is not in accordance with the law.
order is in violation of the constitutional rights of the
provisions of this chapter have not been complied with in the
proceedings before the agency.
rules or procedure of the agency have not afforded the
appellant a fair hearing.
findings of fact made by the agency are not supported by a
preponderance of the evidence.
conclusions of law and order of the agency are not supported
by its findings of fact.
findings of fact made by the agency do not sufficiently
address the evidence presented to the agency by the
conclusions of law and order of the agency do not
sufficiently explain the agency's rationale for not
adopting any contrary recommendations by a hearing officer or
an administrative law judge.
7] This Court has explained:
When reviewing an administrative agency's decision, we
determine only whether a reasoning mind reasonably could have
concluded the findings were supported by the weight of the
evidence from the entire record. This Court does not make
independent findings or substitute its judgment. Once the
facts are established, their significance presents a question
of law, which we review de novo. Our standard of review for a
claimed violation of a constitutional right is de novo.
McCoy, 2014 ND 119, ¶ 8, 848 N.W.2d 659
(citations and internal quotations ...