Ewer N. Alvarado, Appellee
North Dakota Department of Transportation, Appellant
from the District Court of Dunn County, Southwest Judicial
District, the Honorable James D. Gion, Judge.
R. McCabe, Bismarck, ND for appellee.
Douglas B. Anderson, Assistant Attorney General, Bismarck,
ND, for appellant.
The North Dakota Department of Transportation (NDDOT) appeals
from a district court judgment reversing an administrative
hearing officer's decision revoking Alvarado's
driving privileges for a period of 180 days. NDDOT argues
that the district court erred in finding that a partial
reading of the implied consent advisory rendered
Alvarado's refusal to submit to a chemical test invalid.
Our statutes require an operator to refuse a request "to
submit to a test under section 39-20-01." A request for
testing preceded by an incomplete or inaccurate advisory is
not a request "to submit to a test under section
39-20-01." We affirm the district court, reverse the
decision of the administrative hearing officer, and reinstate
Alvarado's driving privileges.
The facts of this case are not in dispute. Alvarado was
stopped for a traffic violation. Alvarado was subsequently
arrested for driving under the influence. Following his
arrest, Alvarado was read a partial implied consent advisory.
The partial advisory failed to inform him that refusing to
take a chemical test could be treated as a crime. Alvarado
refused to submit to a chemical test. At issue is whether
Alvarado's refusal can be determined to have been a
refusal to submit to testing under N.D.C.C. § 39-20-01
when he was not provided with the complete implied consent
advisory as provided by N.D.C.C. § 39-20-01.
Alvarado argues that a refusal to submit to chemical testing
requires a request for testing under N.D.C.C. §
39-20-01, and N.D.C.C. § 39-20-01 requires a complete
implied consent advisory precede a request for testing.
Alvarado relies on our prior opinion in Throlson v.
Backes to support his assertion that a partial implied
consent warning is an invalid request for testing and
prevents a determination that an operator has refused a
request for testing. 466 N.W.2d 124, 126 (N.D. 1991). See
also State v. Bauer, 2015 ND 132, ¶ 7, 863 N.W.2d
534; Gardner v. N.D. Dep't. of Transp., 2012 ND
223, ¶ 8, 822 N.W.2d 55. In Throlson, we
observed "[i]t is axiomatic that before there can be a
'refusal' to submit to testing under Section
39-20-01, there must be a valid request for testing under the
statute." Throlson, 466 N.W.2d at 126. We have
further noted the following in the context of determining
whether an operator has refused to submit to a chemical test:
An arrest by itself is not enough to trigger the required
testing under NDCC 39-20-01. The arresting officer must also
inform the driver that he is or will be charged with driving
under the influence or being in actual physical control.
See Throlson v. Backes, 466 N.W.2d 124, 127 (N.D.
1991) (holding failure to inform driver about alcohol charge
upon arrest made test request under NDCC 39-20-01
ineffective). Here, Holte never informed Scott that he was or
would be charged with an alcohol offense, and the officer did
not direct a test under NDCC 39-20-01.
Scott v. N.D. DOT, 557 N.W.2d 385, 388 (N.D. 1996).
The penalty of revocation of an operator's driving
privileges for refusing to submit to a chemical test is
imposed by N.D.C.C. § 39-20-04. It provides that the
penalty of revocation is imposed "[i]f a person refuses
to submit to testing under section39-20-01"and
revocation is imposed when it has been determined "the
person had refused to submit to the test or tests under
section 39-20-01." The unambiguous language of N.D.C.C.
§ 39-20-04 requires a request for a test be made under
N.D.C.C. § 39-20-01. Additionally, the statutory
guidance for conducting the administrative hearing
specifically provides "[t]he scope of a hearing for
refusing to submit to a test under section 39-20-01."
N.D.C.C. § 39-20-05.
Our prior decisions in Throlson, Bauer, and
Scott, support the conclusion that an operator's
refusal is predicated upon a valid request to submit to
testing pursuant to N.D.C.C. § 39-20-01. The language of
N.D.C.C. § 39-20-04, relating to the imposition of
revocation as a penalty, and N.D.C.C. § 39-20-05,
relating to how the administrative hearing is conducted, both
require a request for testing be made under N.D.C.C. §
39-20-01. We conclude that a prerequisite to a determination
that an operator has refused a request for testing is finding
that the request for testing was made under N.D.C.C.§
Tins Court reviews administrative agency decisions to suspend
driving privileges under N.D.C.C. ch. 28-32 and accords great
deference to the agency's decision. Guthmiller, v.
N.D. Dep't of Transp., 2018 ND 9, ¶ 6, 906
N.W.2d 73. This Court must affirm an agency's decision
1. The order is not in accordance with ...