from the District Court of Cass County, East Central Judicial
District, the Honorable Wade L. Webb, Judge.
Grossman, Fargo, N.D., for appellee.
Douglas B. Anderson, Assistant Attorney General, Bismarck,
N.D., for appellant.
1] The North Dakota Department of Transportation appeals from
a district court judgment reversing the Department's
decision to suspend Dustin Alan LeClair's driving
privileges. The Department argues the district court erred in
reversing its decision to suspend LeClair's license
because the officer's recitation of the implied consent
advisory, which excluded the word "punishable,"
substantially complied with N.D.C.C. § 39-20-01(3)(a).
We reverse the district court's judgment and reinstate
the Department's decision to suspend LeClair's
2] On November 27, 2017, a West Fargo police officer made
contact with LeClair after seeing a car being driven with
"extremely bright lights." The officer observed
LeClair had bloodshot eyes and slurred speech, and a strong
odor of alcohol was coming from the vehicle. The officer
administered field sobriety tests, which indicated LeClair
was impaired. LeClair consented to an onsite screening test
that revealed a blood alcohol level above the legal limit.
3] LeClair was arrested for driving under the influence and
taken to the Cass County jail. At the jail the officer read
an incomplete implied consent advisory to LeClair before
administering an Intoxilyzer chemical breath test. The
officer advised that refusal to submit to a chemical breath
test was "a crime in the same manner as driving under
the influence." The officer's advisory failed to
include the word "punishable" as written in
N.D.C.C. § 39-20-01(3)(a) ("a crime punishable in
the same manner as driving under the influence").
4] At the administrative hearing LeClair objected to
admission of the Intoxilyzer test results, arguing the
implied consent advisory was incomplete. The hearing officer
overruled the objection and suspended LeClair's driving
privileges for two years. LeClair appealed the decision to
the district court, which reversed the Department's
decision and reinstated LeClair's driving privileges.
5] The Administrative Practices Act governs the review of a
decision to suspend driving privileges. We must affirm an
agency's decision unless:
1. The order is not in accordance with the law.
2. The order is in violation of the constitutional rights of
3. The provisions of this chapter have not been complied with
in the proceedings before the agency.
4. The rules or procedure of the agency have not afforded the
appellant a fair hearing.
5. The findings of fact made by the agency are not supported
by a preponderance of the evidence.
6. The conclusions of law and order of the agency are not
supported by its findings of fact.
7. The findings of fact made by the agency do not
sufficiently address the evidence presented to the agency by
8. 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 ...