from the District Court of Burleigh County, South Central
Judicial District, the Honorable Cynthia Feland, Judge.
R. McCabe, Bismarck, ND, for appellee.
Michael T. Pitcher, Attorney General's Office, Bismarck,
ND, for appellant.
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.
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
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.
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.
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.
"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
"1. The order is not in accordance with the law.
2. The order is in violation of the constitutional rights of
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 ...