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Alvarado v. North Dakota Department of Transportation

Supreme Court of North Dakota

September 12, 2019

Ewer N. Alvarado, Appellee
v.
North Dakota Department of Transportation, Appellant

          Appeal from the District Court of Dunn County, Southwest Judicial District, the Honorable James D. Gion, Judge.

          Chad R. McCabe, Bismarck, ND for appellee.

          Douglas B. Anderson, Assistant Attorney General, Bismarck, ND, for appellant.

          OPINION

          Jensen, Justice

         [¶1] 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.

         [¶2] 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.

         [¶3] 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).

         [¶4] 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.

         [¶5] 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.§ 39-20-01.

         [¶6] 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 unless:

1. The order is not in accordance with ...

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