Fossum v. North Dakota Department of Transportation

KAPSNER, Justice,

concurring in the result.

[¶ 24] I concur in the result reached by the majority opinion. The issues raised at the administrative hearing were:

Issues to be considered at today’s suspension hearing on alcohol concentration test results are as follows: 1) whether a law enforcement officer had reasonable grounds to believe, with respect to a person under twenty-one years of age, the person had been driving or was in actual physical control of a vehicle while having an aleo ... alcohol concentration of at least two one-hundredths of one percent by weight; 2) whether the per- ' son was tested in accordance with North Dakota Century Code Section 39-20-01 or 39-20-03 and, if applicable, Section 39-20-02; and 3) whether the test results show the person had an alcohol concentration of at least two one-hundredths of one percent by weight.

[¶ 25] The specification of error raised by Fossum at the district court was:

The Department erroneously determined that the arresting officer complied with basic and mandatory provisions of N.D.C.C. § 39-08-01 before requesting a chemical test for intoxication. Specifically, law enforcement failed to advise Mr. Fossum that he was being placed under arrest for driving under the influence prior to requesting a chemical test for intoxication.

[¶ 26] The district court’s decision was that there was a failure of strict statutory compliance resulting in an evidentiary failure:

Even though ALJ Varvel found that “the evidence presented did not establish that Officer Bohn also arrested Mr. Fossum for a violation of NDCC 39-08-*28901 or equivalent ordinance,” she considered the results of the Intoxilyzer test, which showed Fossum’s blood alcohol concentration exceeded the .02% for a person under twenty-one years of age. See Tr. at 30. However, North Dakota Century Code section 39-20-01 states that “[t]he test or tests must be administered at the direction of a law enforcement officer only after placing the person ... under arrest and informing that person that the person is or will be charged with the offense of driving or being in actual physical control of a vehicle....” N.D.C.C. § 39-20-01. ALJ Varvel’s Findings of Fact and Conclusions of law directly contradict the evidence presented to her and the wording of North Dakota Century Code section 39-20-01. The evidence demonstrates that the results of Fossum’s Intoxilyzer results should not have been considered and without this evidence ALJ Varvel would have been unable to determine Fossum’s blood alcohol content exceeded .02%. See N.D.C.C. 39-20-05(2).

[¶ 27] The issue raised on appeal by the Department was:

Whether an arresting officer must inform an individual less than twenty-one years of age who has been detained under the zero tolerance law that they also are or will be charged with the offense of driving or being in actual physical control of a vehicle while under the influence of intoxicating liquor before a chemical test can be administered?

[¶ 28] Now, this Court decides the case on the basis of consent, an issue neither raised nor fully briefed to this Court. That seems to me to be neither necessary nor helpful in addressing what will remain an unanswered question under Chapter 39-20, N.D.C.C. I concur in the result reached by the majority, but I do so not because Fossum consented to the test, but because the facts of this case, under the applicable statutes, dictate the result. I believe the answer to the specific question raised on appeal by the Department should be answered, and the answer under the facts of this case is “No.”

[¶ 29] The officer stopped Fossum for speeding. Fossum “had an odor of an alcoholic beverage and admitted drinking.” Fossum’s driver’s license established that he was under 21 years of age, and his failure of the horizontal gaze nystagmus test indicated he was driving under the influence of intoxicating liquor. The officer at that point had probable cause to believe that he had observed a zero tolerance violation. The officer testified that he told Fossum he was being arrested and detained for “minor zero tolerance.” Fos-sum testified, “He said minor and he kind of mumbled it, kind of.” The Department argues that by informing Fossum he was being detained under the “minor zero tolerance” law, Fossum was adequately informed under N.D.C.C. § 39-20-01 (2011) for purposes of administering the Intoxi-lyzer test under Asbridge v. N.D. State Highway Comm’r, 291 N.W.2d 739, 747 (N.D.1980) (holding driver was provided with reasonable notice for the cause of his arrest under similar circumstances). I agree.

[¶ 30] Under N.D.C.C. § 39-20-04.1(l)(a) (2011), Fossum, under the age of 21, was subject to the administrative loss of his license for 91 days if driving with an alcohol concentration of at least two one-hundredths of one percent by weight. The officer conveyed to the driver that he was being “arrested” for “minor zero tolerance.” Although the statute requires notice to the driver of the reason for detention, it would be an absurd application of the law to require notice of something other than the reason for detention.

*290[¶ 81] By using the word “arrest” the officer did create some confusion; the officer should have stated that he was “detaining” the driver for minor zero tolerance. However, during a fluid situation, while an officer is determining whether the officer is dealing with a criminal violation or a zero tolerance violation, the word variance between arrest and detention ought not to control so long as the driver is advised of the reason for the detention.

[¶ 32] Section 39-20-01, N.D.C.C. (2011), requires “informing that individual that the individual is or will be charged with the offense of driving or being in actual physical control ... while under the influence of intoxicating liquor....” The words in the statute that cause the problem are “charged with the offense.” The zero tolerance law is not a criminal offense. But interpreted as the district court did, the statute appears to require a detaining officer to advise a person under 21 years old that he or she will be arrested under a charge for which the person can be criminally prosecuted even when the officer believes there is a zero tolerance violation and not a criminal violation. Under this interpretation, the failure to give this warning would mean the officer could not conduct a blood alcohol test for either criminal or “zero tolerance” purposes. If this construction of the statute is correct, for both criminal and zero tolerance purposes, then the district court was correct, and this Court ought to affirm the district court.

[¶ 33] Statutes are strictly construed to favor criminal defendants. State v. Higgins, 2004 ND 115, ¶ 13, 680 N.W.2d 645. This is not a criminal action, but an administrative proceeding. Giving N.D.C.C. § 39-20-01 the construction applied by the district court means that unless an officer incorrectly advises a driver under 21 years old that the officer intends to charge the driver with a crime, the officer cannot collect the evidence needed to establish a zero tolerance violation. Such a result is contrary to the manifest intent of the zero tolerance statute. We construe statutes to avoid absurd or illogical results that are clearly contrary to statutory intent. Koenig v. N.D. Dep’t of Transp., 2005 ND 95, ¶¶ 15, 16, 696 N.W.2d 534.

[¶ 34] I agree with the Department’s position that section 39-20-01 requires informing the driver of a violation of the law involving driving and the use of drugs or alcohol and that Fossum was adequately informed that his violation was “minor zero tolerance.” Under our precedent in As-bridge, this was enough to put a reasonable person on notice as to the cause of the detention. Although cryptic, “minor zero tolerance” does describe the driving violation for which Fossum was subject to license suspension because of his blood alcohol content. N.D.C.C. § 39-20-04.1. This advisement was sufficient under N.D.C.C. § 39-20-01, and it was accurate.

[¶ 35] The statute governing the hearing of this matter also makes it clear that the arrest of an individual under the age of 21 years is not an issue:

If the issue to be determined by the hearing concerns license suspension for operating a motor vehicle while having an alcohol concentration of at least eight one-hundredths of one percent by weight or, with respect to an individual under twenty-one years of age, an alcohol concentration of at least two one-hundredths of one percent by weight, the hearing must be before a hearing officer assigned by the director and at a time and place designated by the director. The hearing must be recorded and its scope may cover only the issues of whether the arresting officer had reasonable grounds to believe the individual had been driving or was in actual physi*291cal control of a vehicle in violation of section 89-08-01 or equivalent ordinance or, with respect to an individual under twenty-one years of age, the individual had been driving or was in actual physical control of a vehicle while having an alcohol concentration of at least two one-hundredths of one percent by weight; whether the individual was placed under arrest, unless the individual was under twenty-one years of age and the alcohol concentration was less than eight one-hundredths of one percent by weight, then arrest is not required and is not an issue under any provision of this chapter; whether the individual was tested in accordance with section 39-20-01 or 39-20-08 and, if applicable, section 39-20-02; and whether the test results show the individual had an alcohol concentration of at least eight one-hundredths of one percent by weight or, with respect to an individual under twenty-one years of age, an alcohol concentration of at least two one-hundredths of one percent by weight....

N.D.C.C. § 39-20-05(2) (2011) (emphasis added).

[¶ 36] I concur in the result.

[¶ 37] LISA FAIR McEVERS, J., concurs.