from the District Court of Williams County, Northwest
Judicial District, the Honorable Paul W. Jacobson, Judge.
Opinion of the Court by Tufte, Justice. Danny L. Herbel,
Bismarck, N.D., for plaintiff and appellant; submitted on
Michael T. Pitcher, Assistant Attorney General, Bismarck,
N.D., for defendant and appellee; submitted on brief.
Drew Sutton appeals from a district court judgment affirming
the Department of Transportation ("Department")
hearing officer's decision revoking Sutton's
driver's license for 180 days. Sutton argues the Report
and Notice did not include a statement of reasonable grounds
for why the police officer believed Sutton was driving under
the influence of alcohol or why he believed Sutton's body
contained alcohol. Sutton argues both alleged failures fall
below the statutory requirements. He also argues there is no
evidence that he affirmatively refused the onsite screening
test. We affirm the district court judgment affirming the
hearing officer's decision.
Officer Craig Ware stopped Sutton for exceeding the posted
speed limit on a motorcycle. Officer Ware noticed the smell
of alcohol coming from Sutton and saw his eyes were bloodshot
and watery and his facial movements were slow. Sutton
admitted he had been drinking, but "not very much,"
and later specified that he'd had "two short beers
earlier." When Officer Ware took Sutton back to the
patrol car, the odor of alcohol persisted and Sutton's
speech was slurred. Officer Ware asked Sutton to perform
field sobriety tests, but Sutton refused. Officer Ware read
Sutton the implied consent advisory and requested he comply
with an onsite screening breath test. Officer Ware testified
that Sutton declined to submit to the test but that he could
not recall how Sutton expressed his refusal.
Officer Ware placed Sutton under arrest for driving under the
influence and then read the Report and Notice implied consent
advisory to Sutton and requested he provide a breath sample.
The advisory was read multiple times throughout the duration
of the interaction, including after Sutton had the
opportunity to contact an attorney; Sutton never clearly
affirmed or denied his willingness to comply. When Officer
Ware asked Sutton for a breath sample, Sutton replied,
"I don't know," and later that he "was
scared." Officer Ware testified Sutton seemed
"unsure of . . . his testing obligation" and
"what he was required to do." Officer Ware
determined Sutton had effectively refused the breath test
"by actions" because he failed to provide a
straight answer. Officer Ware told Sutton he was charged with
refusal of a chemical test, and Sutton was issued a Report
and Notice. The Department held a hearing, and Sutton's
license was revoked for 180 days.
The Administrative Agencies Practice Act, N.D.C.C. ch. 28-32,
governs the standard of review for an administrative hearing
suspending or revoking a driver's license. DeForest
v. N.D. Dep't of Transp., 2018 ND 224, ¶ 5, 918
N.W.2d 43. We review the department's original
determination, not the district court's decision.
Id.; Crawford v. Director, N.D. Dep't of
Transp., 2017 ND 103, ¶ 3, 893 N.W.2d 770. If the
district court's analysis is sound, we give it due
respect. Roberts v. N.D. Dep't of
Transp., 2015 ND 137, ¶ 4, 863 N.W.2d 529.
Our review is limited and we give great deference to the
agency's findings. We do not make independent findings of
fact or substitute our judgment for that of the agency;
instead, we determine whether a reasoning mind reasonably
could have concluded the findings were supported by the
weight of the evidence from the entire record.
DeForest, at ¶ 5. This Court defers to the
"agency's opportunity to judge witnesses'
credibility." Crawford, at ¶ 4. Once the
facts have been established by the administrative hearing
officer, "their significance presents a question of law,
which we review de novo." DeForest, at ¶
5. Just as the district court reviews an administrative
agency appeal under N.D.C.C. § 28-32-46, we review the
appeal of an administrative decision from a district court in
the same manner under N.D.C.C. § 28-32-49.
Crawford, at ¶ 3. This Court must affirm the
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