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Jesser v. North Dakota Department of Transportation

Supreme Court of North Dakota

December 12, 2019

Corey Joseph Jesser, Appellee
v.
North Dakota Department of Transportation, Appellant

          Appeal from the District Court of Burleigh County, South Central Judicial District, the Honorable Cynthia Feland, Judge.

          Chad R. McCabe, Bismarck, ND, for appellee.

          Michael T. Pitcher, Attorney General's Office, Bismarck, ND, for appellant.

          OPINION

          Crothers, Justice.

         [¶1] The North Dakota Department of Transportation appeals from a judgment reversing the decision of an administrative hearing officer revoking Corey Joseph Jesser's driving privileges for 180 days. We reverse the district court judgment and reinstate the administrative hearing officer's decision revoking Jesser's license.

         I

         [¶2] On June 17, 2018, law enforcement dispatch received multiple calls about a hit and run accident involving a black SUV. Dispatch advised Morton County Deputy Peterson that one caller heard what sounded like a moving car dragging vehicle parts. Peterson responded and saw a trail of fluid near the accident site which led around the block to the described vehicle.

         [¶3] Jesser was standing outside the vehicle on the sidewalk near the passenger side. The vehicle had noticeable front-end and passenger-side damage. Peterson administered field sobriety tests and advised Jesser of the implied consent advisory for an onsite screening test and asked Jesser to submit to the test. Jesser refused to take the test and was arrested for driving under the influence. Peterson gave Jesser the post-arrest implied consent advisory and asked Jesser if he would submit to a chemical breath test. After Jesser hesitated answering, Peterson asked Jesser if he would like to call an attorney. Jesser stated he would, but he did not know who to call.

         [¶4] Peterson escorted Jesser to the Burleigh Morton Detention Center and asked the jailers for a telephone and telephone book. Peterson advised Jesser he would get access to a telephone and telephone book. Jesser responded stating, "I don't know who to call." Jesser did not receive a telephone and telephone book, nor did he again mention speaking to an attorney. He did not submit to the chemical breath test.

         [¶5] A Report and Notice was issued to Jesser. It notified him of the Department's intent to revoke his driving privileges. Jesser requested a hearing. The hearing officer found Peterson had reason to believe Jesser was involved in a traffic accident as the driver, Jesser's body contained alcohol, and he refused to submit to the onsite screening test. The hearing officer found Peterson had reasonable grounds to believe Jesser was driving or in actual physical control of a vehicle while under the influence of intoxicating liquor. The hearing officer found Jesser was arrested and refused to submit to the chemical breath test. The hearing officer found the limited statutory right to an attorney was not violated. Jesser's license was revoked for 180 days based on his refusal of the onsite screening test and chemical test. Jesser appealed and the district court reversed. The Department appeals.

         II

         [¶6] "The Administrative Agencies Practice Act, N.D.C.C. ch. 28-32, governs our review of an administrative decision suspending or revoking a driver's license." Crawford v. Director, N.D. Dep't of Transp., 2017 ND 103, ¶ 3, 893 N.W.2d 770. Under N.D.C.C. § 28-32-49, we review an appeal from a district court judgment in an administrative appeal in the same manner as provided under N.D.C.C. § 28-32-46, which requires a district court to affirm an agency order unless it finds any of the following:

"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 ...

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