Jorgenson v. NDDOT , 2020 ND 193 ( 2020 )


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  •               Filed 09/15/2020 by Clerk of Supreme Court
    IN THE SUPREME COURT
    STATE OF NORTH DAKOTA
    
    2020 ND 193
    Brandon James Jorgenson,                                           Appellee
    v.
    Thomas Sorel, Director of
    the North Dakota Department
    of Transportation,                                                Appellant
    No. 20190411
    Appeal from the District Court of Stark County, Southwest Judicial District,
    the Honorable William A. Herauf, Judge.
    AFFIRMED.
    Opinion of the Court by Tufte, Justice.
    Thomas F. Murtha, Dickinson, N.D., for appellee.
    Douglas B. Anderson, Assistant Attorney General, Office of Attorney General,
    Bismarck, N.D., for appellant.
    Jorgenson v. NDDOT
    No. 20190411
    Tufte, Justice.
    [¶1] The Department of Transportation appeals from a district court
    judgment that reversed a hearing officer’s decision suspending Brandon
    Jorgenson’s driving privileges for 180 days. The Department argues the court
    erred in determining that, regardless of whether Jorgenson raised a proper
    objection at the administrative hearing regarding the omission of the phrase
    “directed by the law enforcement officer” from the implied consent advisory,
    the court may reverse the hearing officer’s decision if its findings of fact are not
    supported by the preponderance of evidence. We affirm.
    I
    [¶2] In May 2019, a Stark County deputy sheriff arrested Jorgenson for the
    offense of driving while under the influence of intoxicating liquor. After a June
    2019 administrative hearing, a Department hearing officer issued a decision
    suspending Jorgenson’s driving privileges for 180 days.
    [¶3] Jorgenson petitioned the hearing officer for reconsideration, arguing law
    enforcement lacked a reasonable articulable suspicion to stop him, rendering
    his arrest invalid, and failed to inform him as required under N.D.C.C. § 39-
    20-01(3)(a). The hearing officer purported to grant the reconsideration petition
    but refused to grant Jorgenson’s requested relief or to reconsider the
    Department’s ultimate decision. In a July 12, 2019, disposition, the hearing
    officer stated:
    The petition for reconsideration was granted. As all of the
    issues raised in the petition for reconsideration were raised and
    considered in the original proceeding, there was no new evidence
    to consider. After a thorough review of the petition, the file and the
    evidence in the record, your prayer for relief, that the matter be
    dismissed, is denied. The decision to suspend will remain in effect.
    (Emphasis added.)
    1
    [¶4] Jorgenson appealed to the district court, and the court reversed the
    hearing officer’s decision. In its October 23, 2019, memorandum opinion and
    order, the court held it could review the hearing officer’s finding that the
    deputy had read the implied consent advisory in its entirety under the
    reasoning mind standard and concluded the deputy’s reading of the implied
    consent advisory did not satisfy the statutory requirements. Relying on our
    decision in City of Bismarck v. Vagts, 
    2019 ND 224
    , ¶ 18, 
    932 N.W.2d 523
    , the
    court explained:
    Since the Supreme Court has held omission of the phrase
    “directed by law enforcement” is substantive, the implied consent
    advisory read by [the deputy] does not satisfy N.D.C.C. § 39-20-
    01(3)(a) and therefore the results of the breath test must be
    excluded.
    II
    [¶5] The Department argues the district court erred in reversing the hearing
    officer’s decision. The Administrative Agencies Practice Act, N.D.C.C. ch. 28-
    32, governs the review of the Department’s decision suspending or revoking a
    driver’s license. Sutton v. N.D. Dep’t of Transp., 
    2019 ND 132
    , ¶ 4, 
    927 N.W.2d 93
    . This Court reviews the Department’s original determination, not the
    district court’s decision.
    Id. However, “[i]f the
    district court’s analysis is sound,
    we give it due respect.”
    Id. This Court reviews
    the appeal of an administrative
    agency decision in the same manner as the district court. N.D.C.C. §§ 28-32-
    46, 28-32-49. This Court has explained:
    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.
    Sutton, at ¶ 4 (citation omitted). “Once the facts have been established by the
    administrative hearing officer, their significance presents a question of law,
    which we review de novo.”
    Id. (citation and quotation
    marks omitted).
    2
    Questions of law are fully reviewable on appeal. May v. Sprynczynatyk, 
    2005 ND 76
    , ¶ 5, 
    695 N.W.2d 196
    .
    III
    [¶6] The Department contends the district court erred in reversing the
    Department’s decision because Jorgenson did not properly object to admission
    of the Intoxilyzer test results at the administrative hearing on grounds the
    implied consent advisory given by the deputy omitted the phrase “directed by
    the law enforcement officer.”
    [¶7] At the time of arrest, N.D.C.C. § 39-20-01(3)(a) provided:
    The law enforcement officer shall inform the individual charged
    that North Dakota law requires the individual to take a chemical
    test to determine whether the individual is under the influence of
    alcohol or drugs and that refusal of the individual to submit to a
    test directed by the law enforcement officer may result in a
    revocation of the individual’s driving privileges for a minimum of
    one hundred eighty days and up to three years. In addition, the
    law enforcement officer shall inform the individual refusal to take
    a breath or urine test is a crime punishable in the same manner as
    driving under the influence. If the officer requests the individual
    to submit to a blood test, the officer may not inform the individual
    of any criminal penalties until the officer has first secured a search
    warrant.
    (Emphasis added.) Section 39-20-01(3)(b), N.D.C.C., stated, “A test
    administered under this section is not admissible in any criminal or
    administrative proceeding to determine a violation of section 39-08-01 or this
    chapter if the law enforcement officer fails to inform the individual charged as
    required under [N.D.C.C. § 39-20-01(3)(a)].”
    [¶8] In Vagts, 
    2019 ND 224
    , ¶ 17, 
    932 N.W.2d 523
    , this Court concluded that
    “the officer’s omission of the phrase ‘directed by the law enforcement officer’
    was a substantive omission and did not comply with the statutory
    requirements for the implied consent advisory.” This Court held that the
    advisory given “did not substantively comply with the statutory requirement
    3
    that the individual charged must take a chemical test ‘directed by the law
    enforcement officer’ and that the result of a subsequent breath test [was]
    inadmissible under the applicable language of N.D.C.C. § 39-20-01(3)(b).”
    Vagts, at ¶ 18.
    [¶9] It is undisputed in this case that the deputy omitted the phrase “directed
    by the law enforcement officer” from the implied consent advisory. Under our
    decision in Vagts, therefore, the district court properly reversed the hearing
    officer’s decision.
    [¶10] The Department nevertheless argues that application of this Court’s
    decision in Vagts should be limited to pending cases in which this issue has
    been properly raised and preserved before the administrative tribunal. The
    Department contends Jorgenson waived his argument about the omission from
    the implied consent advisory by failing to raise a proper objection at the
    administrative hearing. The Department argues the argument was not tried
    by the parties’ express or implied consent before the district court and the court
    erred in reviewing the issue. It further contends the district court erred in
    reversing the hearing officer’s finding of fact because no precedent at the time
    controlled whether omission of the phrase “directed by the law enforcement
    officer” was a “substantive omission” rendering the implied consent advisory
    deficient.
    [¶11] Jorgenson responds, however, that the district court correctly reversed
    the hearing officer’s decision because law enforcement failed to inform
    Jorgensen as required under N.D.C.C. § 39-20-01(3)(a). He asserts that the
    Department has inaccurately described the hearing officer’s disposition of his
    petition for reconsideration and that he did not waive his argument regarding
    the hearing officer’s finding that law enforcement gave Jorgenson a complete
    advisory.
    [¶12] Generally, the North Dakota Rules of Evidence govern admissibility
    of evidence at an adjudicative hearing before an administrative agency,
    unless application of the rules is expressly waived by the hearing officer.
    N.D.C.C. § 28-32-24(1) (“An administrative agency, or any person conducting
    4
    proceedings for it, may waive application of the North Dakota Rules of
    Evidence if a waiver is necessary to ascertain the substantial rights of a party
    to the proceeding, but only relevant evidence shall be admitted. The waiver
    must be specifically stated, orally or in writing, either prior to or at a hearing
    or other proceeding.” (emphasis added)); see May, 
    2005 ND 76
    , ¶ 24, 
    695 N.W.2d 196
    . “A hearing officer is afforded broad discretion to control the
    admission of evidence at the hearing, and the decision to admit or exclude
    evidence will only be reversed on appeal if the hearing officer abused his
    discretion.” May, at ¶ 24.
    [¶13] To preserve an issue for appeal, this Court has required an argument to
    be raised before the hearing officer and identified in the specifications of error
    to the district court. See, e.g., May, 
    2005 ND 76
    , ¶ 31, 
    695 N.W.2d 196
    (holding
    hearing officer did not abuse his discretion in admitting the Intoxilyzer test
    results when no timely, specific foundation objection based on claimed facial
    irregularity was made, waiving the objection to the proffered evidence); Richter
    v. N.D. Dep’t of Transp., 
    2010 ND 150
    , ¶ 21, 
    786 N.W.2d 716
    (“Because this
    issue was not raised before the hearing officer, was not specifically stated in
    his specifications of error in accordance with N.D.C.C. § 28-32-42(4), and was
    not adequately supported in his appellate brief to this Court, we decline to
    address it in this appeal.”).
    [¶14] The disposition of this case turns on the precise language used in the
    hearing officer’s July 12, 2019, disposition of Jorgenson’s petition for
    reconsideration. This disposition states both that the petition for
    reconsideration was “granted” and that “all of the issues raised in the petition
    for reconsideration were raised and considered in the original proceeding.”
    This presumably includes the argument Jorgenson raised that the hearing
    officer erred because law enforcement failed to inform Jorgensen as required
    under N.D.C.C. § 39-20-01(3)(a). The Department’s hearing officer was thus
    presented with the argument raised in this appeal.
    [¶15] In the Department’s original decision, the hearing officer found the
    deputy had read the implied consent advisory “in its entirety.” Rather than
    deeming the issue waived in ruling on the petition for reconsideration, the
    5
    hearing officer in the disposition specifically stated the issue was raised and
    considered. Insofar as the hearing officer “granted” the petition, we construe
    that language as the hearing officer having considered the specific issues
    raised in the petition.
    [¶16] Because the hearing officer considered the issue presented on appeal
    regarding the implied consent advisory and because Jorgenson identified the
    issue in his specification of errors to the district court, we hold that the issue
    was not waived. We therefore conclude the district court did not err in
    reversing the hearing officer’s decision.
    IV
    [¶17] The Department’s remaining arguments are either without merit or
    unnecessary to our decision. The judgment is affirmed.
    [¶18] Jerod E. Tufte
    Lisa Fair McEvers
    Jon J. Jensen, C.J.
    Daniel J. Crothers
    Gerald W. VandeWalle
    6
    

Document Info

Docket Number: 20190411

Citation Numbers: 2020 ND 193

Judges: Tufte, Jerod E.

Filed Date: 9/15/2020

Precedential Status: Precedential

Modified Date: 9/15/2020