Filed 9/12/19 by Clerk of Supreme Court
IN THE SUPREME COURT
STATE OF NORTH DAKOTA
2019 ND 231
Ewer N. Alvarado, Appellee
v.
North Dakota Department of Transportation, Appellant
No. 20190032
Appeal from the District Court of Dunn County, Southwest Judicial District,
the Honorable James D. Gion, Judge.
AFFIRMED.
Opinion of the Court by Jensen, Justice.
Chad R. McCabe, Bismarck, ND for appellee.
Douglas B. Anderson, Assistant Attorney General, Bismarck, ND, for
appellant.
Alvarado v. N.D. Dep’t Of Transp.
No. 20190032
Jensen, Justice.
[¶1] The North Dakota Department of Transportation (NDDOT) appeals from a
district court judgment reversing an administrative hearing officer's decision revoking
Alvarado’s driving privileges for a period of 180 days. NDDOT argues that the
district court erred in finding that a partial reading of the implied consent advisory
rendered Alvarado’s refusal to submit to a chemical test invalid. Our statutes require
an operator to refuse a request “to submit to a test under section 39-20-01.” A request
for testing preceded by an incomplete or inaccurate advisory is not a request “to
submit to a test under section 39-20-01.” We affirm the district court, reverse the
decision of the administrative hearing officer, and reinstate Alvarado’s driving
privileges.
[¶2] The facts of this case are not in dispute. Alvarado was stopped for a traffic
violation. Alvarado was subsequently arrested for driving under the influence.
Following his arrest, Alvarado was read a partial implied consent advisory. The
partial advisory failed to inform him that refusing to take a chemical test could be
treated as a crime. Alvarado refused to submit to a chemical test. At issue is whether
Alvarado’s refusal can be determined to have been a refusal to submit to testing under
N.D.C.C. § 39-20-01 when he was not provided with the complete implied consent
advisory as provided by N.D.C.C. § 39-20-01.
[¶3] Alvarado argues that a refusal to submit to chemical testing requires a request
for testing under N.D.C.C. § 39-20-01, and N.D.C.C. § 39-20-01 requires a complete
implied consent advisory precede a request for testing. Alvarado relies on our prior
opinion in Throlson v. Backes to support his assertion that a partial implied consent
warning is an invalid request for testing and prevents a determination that an operator
has refused a request for testing. 466 N.W.2d 124, 126 (N.D. 1991). See also State
v. Bauer, 2015 ND 132, ¶ 7, 863 N.W.2d 534; Gardner v. N.D. Dep't. of Transp.,
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2012 ND 223, ¶ 8, 822 N.W.2d 55. In Throlson, we observed “[i]t is axiomatic that
before there can be a ‘refusal’ to submit to testing under Section 39-20-01, there must
be a valid request for testing under the statute.” Throlson, 466 N.W.2d at 126. We
have further noted the following in the context of determining whether an operator has
refused to submit to a chemical test:
An arrest by itself is not enough to trigger the required testing under
NDCC 39-20-01. The arresting officer must also inform the driver that
he is or will be charged with driving under the influence or being in
actual physical control. See Throlson v. Backes, 466 N.W.2d 124, 127
(N.D. 1991) (holding failure to inform driver about alcohol charge upon
arrest made test request under NDCC 39-20-01 ineffective). Here,
Holte never informed Scott that he was or would be charged with an
alcohol offense, and the officer did not direct a test under NDCC
39-20-01.
Scott v. N.D. DOT, 557 N.W.2d 385, 388 (N.D. 1996).
[¶4] The penalty of revocation of an operator’s driving privileges for refusing to
submit to a chemical test is imposed by N.D.C.C. § 39-20-04. It provides that the
penalty of revocation is imposed “[i]f a person refuses to submit to testing under
section 39-20-01” and revocation is imposed when it has been determined “the person
had refused to submit to the test or tests under section 39-20-01.” The unambiguous
language of N.D.C.C. § 39-20-04 requires a request for a test be made under
N.D.C.C. § 39-20-01. Additionally, the statutory guidance for conducting the
administrative hearing specifically provides “[t]he scope of a hearing for refusing to
submit to a test under section 39-20-01.” N.D.C.C. § 39-20-05.
[¶5] Our prior decisions in Throlson, Bauer, and Scott, support the conclusion that
an operator’s refusal is predicated upon a valid request to submit to testing pursuant
to N.D.C.C. § 39-20-01. The language of N.D.C.C. § 39-20-04, relating to the
imposition of revocation as a penalty, and N.D.C.C. § 39-20-05, relating to how the
administrative hearing is conducted, both require a request for testing be made under
N.D.C.C. § 39-20-01. We conclude that a prerequisite to a determination that an
operator has refused a request for testing is finding that the request for testing was
made under N.D.C.C. § 39-20-01.
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[¶6] This Court reviews administrative agency decisions to suspend driving
privileges under N.D.C.C. ch. 28-32 and accords great deference to the agency’s
decision. Guthmiller, v. N.D. Dep’t of Transp., 2018 ND 9, ¶ 6, 906 N.W.2d 73. This
Court must affirm an agency’s decision unless:
1. The order is not in accordance with the law.
....
6. The conclusions of law and order of the agency are not
supported by its findings of fact.
....
Id.
[¶7] The administrative hearing officer found that Alvarado was “read a partial
implied consent advisory,” which “did not inform Mr. Alvarado that refusal of the
chemical breath test was a crime punishable in the same manner as a DUI.” The
administrative hearing officer thereafter concluded Alvarado refused to submit to
testing.
[¶8] We have concluded the legislature unambiguously required a request for a
refusal be preceded by a request for testing made in compliance with N.D.C.C. § 39-
20-01. While this Court has allowed law enforcement to deviate from a verbatim
reading of the statutory language of N.D.C.C. § 39-20-01(3)(a), we do require that
the advisory communicate all substantive information of the statute. See State v.
Vigen, 2019 ND 134, ¶ 15, 927 N.W.2d 430; see also Korb v. N.D. Dep't of Transp.,
2018 ND 226, ¶ 10, 918 N.W.2d 49 (finding that N.D.C.C. § 39-20-01(3)(a) provides
the mandatory language that must be included in the advisory). Because Alvarado
was only provided with a partial implied consent warning (he was not informed that
refusing to take a chemical test could be treated as a “crime”), the request for testing
was neither in compliance with N.D.C.C. § 39-20-01 nor sufficient to result in a
refusal to submit to testing. We therefore conclude the administrative determination
that Alvarado refused to take a chemical test is either not in compliance with the law
or not supported by the administrative findings.
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[¶9] A request to submit to testing must be made in accordance to N.D.C.C. §
39-20-01 to support a determination that there has been a refusal to submit to testing
under N.D.C.C. § 39-20-01. A request for testing subsequent to a partial implied
consent warning is not a request to test under N.D.C.C. § 39-20-01. We affirm the
district court, reverse the decision of the administrative hearing officer, and reinstate
Alvarado’s driving privileges.
[¶10] Jon J. Jensen
Jerod E. Tufte
Lisa Fair McEvers
I Concur in the result.
Daniel J. Crothers
VandeWalle, Chief Justice, concurring specially.
[¶11] Section 39-20-01(3)(a), N.D.C.C., requires specific information be
communicated by law enforcement when requesting an individual arrested for driving
under the influence submit to chemical testing. State v. Vigen, 2019 ND 134, ¶ 7, 927
N.W.2d 430. In addition to informing individuals that North Dakota law requires them
to take a chemical test, the statute mandates that law enforcement officers “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.” N.D.C.C. § 39-20-01(3)(a). Before a
chemical test may be administered, law enforcement must read the “complete implied
consent advisory.” State v. O’Connor, 2016 ND 72, ¶ 1, 877 N.W.2d 312. For an
advisory to be considered “complete,” all substantive information in the statute must
be communicated to the individual. Vigen, at ¶ 7. “It is axiomatic that before there can
be a ‘refusal’ to submit to testing under Section 39-20-01, there must be a valid
request for testing under the statute.” Gardner v. N.D. Dep’t of Transp., 2012 ND
223, ¶ 8, 822 N.W.2d 55 (quoting Throlson v. Backes, 466 N.W.2d 124, 126 (N.D.
1991)); see also State v. Bauer, 2015 ND 132, ¶ 7, 863 N.W.2d 534.
[¶12] While this Court has allowed law enforcement to deviate from a verbatim
reading of the statutory language of N.D.C.C. § 39-20-01(3)(a), we do require that the
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advisory communicate all substantive information of the statute. See Vigen, 2019 ND
134, ¶ 15, 927 N.W.2d 430; see also Korb v. N.D. Dep’t of Transp., 2018 ND 226, ¶
10, 918 N.W.2d 49 (finding that N.D.C.C. § 39-20-01(3)(a) provides the mandatory
language that must be included in the advisory). If all substantive information of the
statute is not communicated, a valid request for testing under the statute does not
occur. Without a valid request for testing, including a valid advisory, there can be no
refusal to submit to testing under N.D.C.C. § 39-20-01. See Gardner, 2012 ND 223,
¶ 8, 822 N.W.2d 55.
[¶13] In O’Connor, an officer provided an individual “with a partial implied consent
advisory which failed to inform him that refusal to take a chemical test ‘is a crime
punishable in the same manner as driving under the influence.’” O’Connor, 2016 ND
72, ¶ 3, 877 N.W.2d 312 (quoting N.D.C.C. § 39-20-01(3)(a)). We determined that
under the plain terms of N.D.C.C. § 39-20-01(3)(b), test results obtained following
an incomplete advisory were inadmissible in a criminal proceeding for driving under
the influence. Id. The Court also discussed the inadmissibility of voluntary test results
where a proper implied consent agreement is not read. Id. at ¶ 12. The plain language
of N.D.C.C. § 39-20-01(3)(a) requires a valid request for testing before any next steps
can occur, whether that be an individual consenting to or refusing chemical testing.
[¶14] Here, there is no dispute that the deputy read Alvarado an incomplete implied
consent advisory. Like in O’Connor, the deputy in this case failed to inform Alvarado
that refusal to take a chemical test is a crime punishable in the same manner as driving
under the influence. The only difference is that Alvarado refused to take the test,
where O’Connor consented. See O’Connor, 2016 ND 72, ¶ 18, 877 N.W.2d 312
(VandeWalle, C.J., concurring specially) (“I understand that had the person refused
to take the test and been convicted and punished in the same manner as driving under
the influence, the person could very well have been disadvantaged by the advisory in
this instance.”) While the O’Connor decision was based primarily upon the exclusion
remedy in N.D.C.C. § 39-20-01(3)(b), the lack of an equivalent statute addressing
refusal does not preclude relief. Instead, relief is granted not by excluding test results,
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but from recognizing that for a refusal of a chemical test to be valid, it must be
preceded by a valid request. See Gardner, 2012 ND 223, ¶ 8, 822 N.W.2d 55.
[¶15] The Department contends that Alvarado only needed to be informed of the
consequences of the administrative proceeding in order for his refusal to be valid and
that the legislature specifically did not provide a remedy for an individual who
refuses. This assertion contradicts the plain meaning of N.D.C.C. § 39-20-01(3)(a).
Furthermore, one of the purposes of the implied consent advisory is to encourage
individuals to take the chemical tests and being informed of potential criminal
sanctions may persuade some individuals that would otherwise refuse testing. Only
providing the part of the advisory related to administrative penalties ignores the
legislature’s intent to encourage testing. The legislature created specific warnings that
must be read in order for the implied consent advisory to be valid. Neither the
Department nor law enforcement have the authority to decide what type of penalties,
whether criminal or administrative, an individual may receive based on what part of
the advisory an officer chooses to read.
[¶16] Gerald W. VandeWalle, C.J.
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