932 N.W.2d 911
N.D.2019Background
- Alvarado was stopped for a traffic violation, arrested for DUI, and asked to submit to a chemical test.
- The arresting deputy read only a partial implied-consent advisory; it omitted that refusing a chemical test "is a crime punishable in the same manner as driving under the influence."
- Alvarado refused the chemical test; an administrative hearing officer revoked his driving privileges for 180 days.
- The Dunn County District Court reversed the administrative revocation; NDDOT appealed to the North Dakota Supreme Court.
- The Supreme Court held the incomplete advisory meant the officer did not make a request "under § 39-20-01," so Alvarado’s refusal could not support statutory revocation; the court affirmed the district court and reinstated driving privileges.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether a partial implied-consent advisory supports a statutory "request" for testing under N.D.C.C. § 39-20-01 so a later refusal triggers revocation | Alvarado: a refusal requires a valid request under § 39-20-01; a partial advisory that omits statutorily required warnings invalidates the request | NDDOT: only the administrative-warning portion need be given; the legislature did not provide a remedy for an incomplete advisory regarding refusal | Court: incomplete advisory (failure to warn that refusal is a crime) means no request under § 39-20-01; refusal determination invalid; privileges reinstated |
| Whether lack of an exclusionary statute for refusals bars relief for an incomplete advisory | Alvarado: relief available by treating refusal as invalid if no valid request was made | NDDOT: absence of statutory remedy means refusal stands | Court: relief is proper by recognizing refusal was invalid (distinct from excluding test results); valid request is prerequisite to any refusal determination |
Key Cases Cited
- Throlson v. Backes, 466 N.W.2d 124 (N.D. 1991) (a "refusal" requires a valid statutory request; incomplete request invalid)
- Scott v. N.D. DOT, 557 N.W.2d 385 (N.D. 1996) (arrest alone does not trigger § 39-20-01; officer must inform driver of DUI charge)
- State v. Bauer, 863 N.W.2d 534 (N.D. 2015) (refusal analysis requires valid statutory request)
- Gardner v. N.D. Dep't of Transp., 822 N.W.2d 55 (N.D. 2012) (same: refusal requires valid request)
- State v. Vigen, 927 N.W.2d 430 (N.D. 2019) (advisory need not be verbatim but must convey all substantive statutory information)
- Korb v. N.D. Dep't of Transp., 918 N.W.2d 49 (N.D. 2018) (statutory mandatory language must be included in the advisory)
- State v. O'Connor, 877 N.W.2d 312 (N.D. 2016) (incomplete advisory renders subsequent test results inadmissible in criminal proceedings; discusses "complete implied consent advisory")