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Leclair v. Sorel

Supreme Court of North Dakota

December 6, 2018

Dustin Alan LeClair, Appellee
v.
Thomas Sorel, Director, Department of Transportation, Appellant

          Appeal from the District Court of Cass County, East Central Judicial District, the Honorable Wade L. Webb, Judge.

          Lee M. Grossman, Fargo, N.D., for appellee.

          Douglas B. Anderson, Assistant Attorney General, Bismarck, N.D., for appellant.

          OPINION

          TUFTE, JUSTICE.

         [¶ 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 driving privileges.

         I

         [¶ 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.

         II

         [¶ 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 the appellant.
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 the appellant.
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 ...

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