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.)
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[¶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).
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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
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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
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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
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