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Sutton v. North Dakota Department of Transportation

Supreme Court of North Dakota

May 16, 2019

Drew Park Sutton, Plaintiff and Appellant
North Dakota Department of Transportation, Defendant and Appellee

          Appeal 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 brief.

          Michael T. Pitcher, Assistant Attorney General, Bismarck, N.D., for defendant and appellee; submitted on brief.


          Tufte, Justice.

         [¶1] 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.


         [¶2] 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.

         [¶3] 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.


         [¶4] 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 ...

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