822 N.W.2d 55
N.D.2012Background
- Gardner challenged a one-year license suspension following an administrative hearing after a sobriety stop in Stark County.
- Deputies found Gardner in a field van with a shredded tire and beer; Gardner exhibited instability during exit and Walked zigzag.
- Gardner refused to identify himself, and the officer diagnosed likely impairment; Gardner was arrested for actual physical control while under the influence.
- Deputies sought blood testing; Gardner repeatedly refused, later stating willingness, then threatened officers en route to jail.
- The hearing officer found reasonable grounds, arrest, and a refusal by Gardner; the suspension followed.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether failure to read consequences of refusal affects refusal validity | Gardner argues no valid testing request without advised consequences | § 39-20-05(3) excludes that issue from hearing | Exclusion applied; issue not considered at hearing |
| Whether Gardner actually refused the chemical test | Gardner did not genuinely refuse; indicated willingness | Refusal shown by circumstances and conduct | Refusal supported by weight of evidence |
| Whether the hearing properly limited review to statutory issues | Hearing should address advisory compliance | Hearing limited to prescribed issues under § 39-20-05(3) | Properly limited; advisory compliance not within scope |
Key Cases Cited
- Olson v. N.D. Dep’t of Transp., 523 N.W.2d 258 (N.D. 1994) (statutory directive not to preclude issues otherwise; reading advisory to a minor differs)
- Agnew v. Hjelle, 216 N.W.2d 291 (N.D. 1974) (limits on which issues can be considered at administrative hearing)
- Kuntz v. State Highway Comm’r, 405 N.W.2d 285 (N.D. 1987) (right to consult with attorney; distinguished from advisory reading issue)
- Throlson v. Baches, 466 N.W.2d 124 (N.D. 1991) (valid request for testing prerequisite before testing under § 39-20-01)
- Lange v. N.D. Dep’t of Transp., 2010 ND 201 (N.D. 2010) (standard of review for agency findings; deference to agency factual determinations)
- Mayo v. Moore, 527 N.W.2d 257 (N.D. 1995) (refusal can be inferred from non-cooperation or non-submission)
- Hammeren v. N.D. State Highway Comm’r, 315 N.W.2d 679 (N.D. 1982) (refusal is a factual determination)
- Jorgenson v. N.D. Dep’t of Transp., 498 N.W.2d 167 (N.D. 1993) (context of cooperation and testing)
- Geiger v. Hjelle, 396 N.W.2d 302 (N.D. 1986) (prior cases on implied consent and testing)
- Abernathey v. N.D. Dep’t of Transp., 768 N.W.2d 485 (N.D. 2009) (agency findings review standard)