Yellowbird v. North Dakota Department of Transportation
2013 ND 131
| N.D. | 2013Background
- In Aug. 2012, Glen YellowBird was stopped for a traffic violation, admitted drinking, and performed limited field sobriety testing; he refused an on-site breath (S-D5) test and later refused an Intoxilyzer test.
- Officer Jessica Helgeson (a recruit officer) requested the on-site S-D5 test but was not certified to administer it; she testified another certified officer would have administered the S-D5.
- The administrative hearing found YellowBird refused the S-D5 and revoked his license; the refusal to the Intoxilyzer was dismissed because the HGN was improperly administered.
- YellowBird appealed to district court arguing N.D.C.C. § 39-20-14 requires the officer who requests the on-site screening test to be certified to administer it, so his refusal could not constitute a statutory refusal.
- The district court affirmed the Department’s revocation; the Supreme Court reviews statutory interpretation de novo and whether the agency’s findings are supported by the record.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether N.D.C.C. § 39-20-14 requires the officer who requests an on-site screening test to be certified to administer it | YellowBird: The officer making the request must be a certified chemical test operator, so his refusal cannot be a statutory refusal | DOT: The statute only requires that the screening tests be performed by a certified officer, not that the requesting officer be certified | Court: The statute’s plain language does not require the requesting officer to be certified; only the administering officer must be certified. |
Key Cases Cited
- Thorsrud v. Director, N.D. Dep’t of Transp., 819 N.W.2d 483 (N.D. 2012) (standard for reviewing agency factfinding)
- Buchholtz v. Director, N.D. Dep’t of Transp., 746 N.W.2d 181 (N.D. 2008) (agency review standards)
- Mees v. N.D. Dep’t of Transp., 827 N.W.2d 345 (N.D. 2013) (court will not substitute its judgment for agency findings)
- Brewer v. Ziegler, 743 N.W.2d 391 (N.D. 2007) (purpose of onsite screening tests is to assist arrest determination)
- Neset v. N.D. State Highway Comm’r, 388 N.W.2d 860 (N.D. 1986) (rejecting argument that only the arresting officer may request/administer chemical tests)
- State v. Dennis, 733 N.W.2d 241 (N.D. 2007) (discussion of definite vs. indefinite articles in statutory construction)
- BP America Production Co. v. Madsen, 53 P.3d 1088 (Wyo. 2002) (use of definite article can be limiting in statutory interpretation)