Garcia v. Levi, 20160036.

883 N.W.2d 901

Benjamin Becerra GARCIA, Appellant

v.Grant LEVI, Director of the North Dakota Department of Transportation, Appellee.

No. 20160036.

Supreme Court of North Dakota.

Aug. 31, 2016.

Thomas F. Murtha IV, Dickinson, N.D., for appellant.

Michael T. Pitcher, Office of the Attorney General, Bismarck, N.D., for appellee.

SANDSTROM, Justice.

[¶ 1] Benjamin Garcia appeals from a district court judgment affirming a Department of Transportation hearing officer's decision revoking his driving privileges for 180 days. We conclude a police officer's initial approach of Garcia's parked vehicle was not a seizure and a reasonable and articulable suspicion supported the officer's further investigation. We also conclude North Dakota's test refusal statute and implied consent laws are not unconstitutional as applied in this case, because Garcia refused the police officer's warrantless request to take a chemical breath test after he had been arrested. We affirm.

I

[¶ 2] On April 7, 2015, at about 1:32 a.m., a Dickinson police officer responded to a dispatch call about a male in a silver pickup with no plates screeching the tires and driving around a motel parking lot. The report had come from an unidentified caller at the motel. When the officer arrived at the motel, he located a parked pickup with no license plates matching the general description in the report. The officer parked his patrol vehicle several car lengths away from the pickup without activating his emergency lights and approached the vehicle on foot. The officer observed the driver, later identified as Garcia, sitting in the pickup's driver's seat with the engine running and lights on.

[¶ 3] Once the officer reached the pickup, he asked Garcia to roll down the window and to shut off the vehicle's engine, which Garcia did. The officer could smell a strong odor of alcohol coming from the pickup and observed that Garcia had bloodshot, watery eyes and slurred speech. The officer also observed an open bottle of beer in the back passenger seat. When the officer asked Garcia for his driver's license, Garcia initially gave him a motel key. After asking again, Garcia handed the officer his license.

[¶ 4] The officer asked Garcia to step out of the pickup, and Garcia complied.

When the officer asked Garcia whether he had been drinking, Garcia said that he had had two beers. The officer requested Garcia to perform field sobriety tests. Garcia initially answered questions appropriately regarding the horizontal gaze nystagmus test but indicated he had an eye problem, so the officer did not go forward with that test. When the officer attempted to have him perform other field sobriety tests, Garcia appeared not to understand the instructions. The officer observed Garcia swaying while standing and having a hard time keeping his balance. The officer asked Garcia to take an onsite screening breath test, which Garcia refused.

[¶ 5] The officer placed Garcia under arrest for being in the actual physical control of a motor vehicle while under the influence of alcohol and for refusal of the breath test. After transporting Garcia to the law enforcement center, the officer read him the implied consent advisory. The officer asked Garcia to take a breath test with the Intoxilyzer 8000. Garcia refused. The officer issued a report and notice, including a temporary operator's permit, notifying Garcia of the Department's intent to revoke his driving privileges.

[¶ 6] Garcia requested an administrative hearing, which was held before a Department hearing officer, and Garcia was permitted to testify with an interpreter. The hearing officer subsequently issued findings of fact, conclusions of law, and a decision revoking Garcia's driving privileges for 180 days. Garcia petitioned for reconsideration of the hearing officer's decision, which was denied. Garcia appealed to the district court, which affirmed the Department's decision.

[¶ 7] The appeal to the district court was timely under N.D.C.C. § 28–32–42. The district court had jurisdiction under N.D. Const. art. VI, § 8, and N.D.C.C. § 28–32–46. The appeal from the district court was timely under N.D.C.C. § 28–32–49, and this Court has jurisdiction under N.D. Const. art. VI, §§ 2 and 6, and N.D.C.C. § 28–32–49.

II

[¶ 8] We review the administrative revocation of a driver's license under N.D.C.C. § 28–32–46. This Court must affirm an agency's order unless:

1. The order is not in accordance with the law.

2. The order is in violation of the constitutional rights of the appellant.

3. The provisions of this chapter have not been complied with in the proceedings before the agency.

4. The rules or procedure of the agency have not afforded the appellant a fair hearing.

5. The findings of fact made by the agency are not supported by a preponderance of the evidence.

6. The conclusions of law and order of the agency are not supported by its findings of fact.

7. The findings of fact made by the agency do not sufficiently address the evidence presented to the agency by the appellant.

8. The conclusions of law and order of the agency do not sufficiently explain the agency's rationale for not adopting any contrary recommendations by a hearing officer or an administrative law judge.

Id.; see also N.D.C.C. § 28–32–49. “[W]e do not make independent findings of fact or substitute our judgment for that of the agency.” Power Fuels, Inc. v. Elkin, 283 N.W.2d 214, 220 (N.D.1979). “We determine only whether a reasoning mind reasonably could have determined that the factual conclusions reached were proved by the weight of the evidence from the entire record.” Id. “An agency's conclusions on questions of law are subject to full review.” Schlittenhart v. N.D. Dep't of Transp., 2015 ND 179, ¶ 14, 865 N.W.2d 825 (quoting Vanlishout v. N.D. Dep't of Transp., 2011 ND 138, ¶ 12, 799 N.W.2d 397 ).

III

[¶ 9] Garcia argues the Department lacked jurisdiction to proceed with the administrative hearing because the certified written report required by statute, the Report and Notice form, failed to establish reasonable articulable suspicion to stop or detain him. During oral argument to this Court, however, Garcia conceded the Department had jurisdiction to proceed with the hearing. We conclude his argument is without merit and need not be addressed further.

IV

[¶ 10] Garcia argues the hearing officer erred in the findings of fact and conclusions of law because the stop or detention of Garcia was illegal.

[¶ 11] All searches and seizures must be reasonable under the Fourth Amendment to the United States Constitution, applicable to the states under the Fourteenth Amendment, and article I, section 8, of the North Dakota Constitution. Richter v. N.D. Dep't of Transp., 2010 ND 150, ¶ 9, 786 N.W.2d 716. Not all encounters between police officers and citizens, however, are seizures that implicate the Fourth Amendment. State v. Musselman, 2016 ND 111, ¶ 10, 881 N.W.2d 201. “It is not a Fourth Amendment seizure for a police officer to approach and talk with a person in a public place.” Id. (quoting State v. Leher, 2002 ND 171, ¶ 7, 653 N.W.2d 56 ). Similarly, in Richter, at ¶ 10, this Court discussed the difference between a police officer's approach of a stopped vehicle and the stop of a moving one:

We have also distinguished between an officer's approach of a parked vehicle and the stop of a moving vehicle. State v. Franklin, 524 N.W.2d 603, 604 (N.D.1994). We have explained that an “officer's approach of a parked vehicle is not a seizure if the officer ‘inquires of the occupant in a conversational manner, does not order the person to do something, and does not demand a response.’ ” City of Jamestown v. Jerome, 2002 ND 34, ¶ 5, 639 N.W.2d 478 (quoting State v. Langseth, 492 N.W.2d 298, 300 (N.D.1992) ). A “casual encounter” may also lead to a seizure where “an officer ... learn[s] something during a ... casual encounter that leads to a reasonable suspicion and that reasonably justifies further investigation, a seizure, or even an arrest.” Langseth, 492 N.W.2d at 300. “A seizure occurs within the context of the Fourth Amendment only when the officer, by means of physical force or show of authority, has in some way restrained the liberty of a citizen.” Jerome, at ¶ 5. “ ‘[A] person has been “seized” within the meaning of the Fourth Amendment only if, in view of all of the circumstances surrounding,the incident, a reasonable person would have believed that he was not free to leave.’ ” State v. Koskela, 329 N.W.2d 587, 589 (N.D.1983) (quoting [U.S. v.] Mendenhall, 446 U.S. [544,] 554, 100 S.Ct. 1870, 64 L.Ed.2d 497 [ (1980) ].) “ ‘Whether a Fourth Amendment violation has occurred “turns on an objective assessment of the officer's actions in light of the facts and circumstances confronting him at the time,” ... and not on the officer's actual state of mind at the time the challenged action was taken.’ ” State v. Smith, 452 N.W.2d 86, 88 (N.D.1990) (quoting Maryland v. Macon, 472 U.S. 463, 470–71, 105 S.Ct. 2778, 86 L.Ed.2d 370 (1985) ).

Richter, 2010 ND 150, ¶ 10, 786 N.W.2d 716.

[¶ 12] “In the context of law enforcement-citizen contacts, a ‘Terry’ stop, or investigative stop, temporarily restrains an individual's freedom, which results in a Fourth Amendment seizure.” Musselman, 2016 ND 111, ¶ 10, 881 N.W.2d 201 (quoting State v. Boyd, 2002 ND 203, ¶ 13, 654 N.W.2d 392 ). In reviewing a Terry stop, a court must “(1) determine whether the facts warranted the intrusion of the individual's Fourth Amendment rights, and if so, (2) determine whether the scope of the intrusion was reasonably related to the circumstances which justified the interference in the first place.” State v. Sarhegyi, 492 N.W.2d 284, 286 (N.D.1992). “We use an objective standard: would a reasonable person in the officer's position be justified by some objective evidence in believing the defendant was, or was about to be, engaged in unlawful activity?” Boyd, at ¶ 14. In Musselman, at ¶¶ 12–13, we further explained:

To determine whether an

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