Barrios-Flores v. Levi , 2017 N.D. LEXIS 128 ( 2017 )

Kapsner, Justice.

[¶ 1] Wises Barrios-Flores appeals from a judgment affirming a Department of Transportation decision revoking his driving privileges for two years for refusing to submit to an onsite screening test of his breath. We conclude a law enforcement officer may request an onsite screening test of a driver’s breath based on reasonable suspicion the driver was driving while impaired. We affirm.

I

[¶2] In June 2015, a law enforcement officer stopped a vehicle driven by Barrios-Flores for speeding. The officer testified at an administrative hearing that Barrios-Flores had watery bloodshot eyes, appeared confused, admitted consuming alcohol, and appeared to have difficulty maintaining a normal walk while exiting his vehicle. The officer testified that before asking Barrios-Flores to submit to a preliminary onsite screening test of his breath, the officer read Barrios-Flores the North Dakota implied consent advisory in English and also used a language interpretation service to recite the advisory to Barrios-Flores in Spanish. The advisory states that as a condition of operating a motor vehicle on a highway in North Dakota, a driver consents to taking a test to determine whether the motorist is under the influence of alcohol or drugs, that North Dakota law requires the driver to take a breath screening test and a chemical test to determine whether the driver is under the influence of alcohol or drugs, and that refusal to take the test as directed by a law enforcement officer is a crime punishable in the same manner as driving under the influence. The advisory also states that refusal to, take the test as directed by a law enforcement officer may result in revocation of a driver’s license. The officer testified that after reading Barrios-Flores the implied consent advisory, Barrios-Flores refused to take a preliminary onsite screening test of his breath. The officer testified he arrested Barrios-Flores, repeated the implied consent advisory, and asked him to submit to a warrantless breath test incident to the arrest. The officer testified Barrios-Flores did not respond and was deemed to have refused the request for a breath test incident to arrest.

[¶ 3] Barrios-Flores requested an administrative hearing to contest the Department’s intention to revoke his driving privileges. After a hearing, a hearing officer found the arresting officer observed a speeding vehicle driven by Barrios-Flores and initiated a traffic stop. The hearing officer found Barrios-Flores had bloodshot watery eyes and admitted having a couple of beers. The hearing officer found the arresting officer read Barrios-Flores the implied consent- advisory and Barrios-Flores refused to take the onsite screening test. The hearing officer concluded the arresting officer had reason to believe Barrios-Flores’ vehicle-was involved in a moving traffic violation, had reason to believe his body contained alcohol, and he refused the onsite screening test. The hearing officer revoked Barrios-Flores’ driving privileges for two years' for refusing the onsite screening test. The hearing officer dismissed the Department’s claim about Barrios-Flores’ refusal to take a breath test incident to arrest, finding the arresting officer did not inform Barrios-Flores about the reason for the arrest as required by N.D.C.C. § 39-20-01. The district court affirmed the Department’s decision.

II

[¶ 4] Our review of the Department’s administrative decision to suspend or revoke a driver’s license is governed by N.D.C.C. ch. 28-32, the Administrative Agencies Practice Act. Potratz v. N.D. Dep’t of Transp., 2014 ND 48, ¶ 7, 843 N.W.2d 305. Under N.D.C.C. § 28-32-46, a court must affirm an agency’s decision 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.

[¶ 5] In Potratz, 2014 ND 48, ¶ 7, 843 N.W.2d 305 (quoting Pesanti v. N.D. Dep’t of Transp., 2013 ND 210, ¶ 7, 839 N.W.2d 851), we described our deferential standard of review of an agency’s findings of fact:

“The review is limited to the record before the administrative agency. We review the administrative hearing officer’s decision and give deference to the administrative hearing officer’s findings. We do not, however, make independent findings or substitute our judgment for that of the agency. Rather, we determine only whether a reasoning mind reasonably could have concluded the findings were supported by the weight of the evidence from the entire record. We defer to the hearing officer’s opportunity to judge the credibility of witnesses.”

[¶ 6] “ ‘[Wjhether the facts meet the legal standard, rising to the level of probable cause or reasonable and articula-ble suspicion, is a question of law fully reviewable on appeal.’” Aamodt v. N.D. Dep’t of Transp., 2004 ND 134, ¶ 12, 682 N.W.2d 308 (quoting Dettler v. Sprynczynatyk, 2004 ND 54, ¶ 10, 676 N.W.2d 799).

Ill

[¶ 7] In Birchfield v. North Dakota, — U.S. —, 136 S.Ct. 2160, 2172, 195 L.Ed.2d 560 (2016), the United States Supreme Court consolidated three implied-consent cases “to decide whether motorists lawfully arrested for drunk driving may be convicted of a crime or otherwise penalized for refusing to take a warrantless test measuring the alcohol in their bloodstream.” See State v. Birchfield, 2015 ND 6, 858 N.W.2d 302; Beylund v. Levi, 2015 ND 18, 859 N.W.2d 403; and State v. Bernard, 859 N.W.2d 762 (Minn. 2015). The United States Supreme Court differentiated between blood and breath tests and held the Fourth Amendment permits war-rantless breath tests incident to a lawful arrest for drunk driving, but does not permit warrantless blood tests incident to a lawful arrest for drunk driving. 136 S.Ct. at 2184-85. The Supreme Court concluded that in Danny Birchfield’s criminal prosecution for refusing a warrantless blood test incident to his arrest, the refused blood test was not justified as a search incident to his arrest and reversed his conviction because he was threatened with an unlawful search. Id. at 2186. The Supreme Court concluded that in William Bernard’s criminal prosecution for refusing a warrantless breath test incident to his arrest, he had no right to refuse the breath test because the test was a permissible search incident to his arrest and the Fourth Amendment did not require officers to obtain a warrant before demanding the breath test. Id.

[¶ 8] The Supreme Court also concluded that in an administrative proceeding to suspend Steven Beylund’s license after he consented to a warrantless blood test incident to arrest, a remand to this Court for further proceedings was necessary to determine the voluntariness of Beylund’s consent under the totality of the circumstances given the partial inaccuracy of the implied consent advisory.¹ Birchfield, 136 S.Ct. at 2186-87. The. Supreme Court also said:

If the court on remand finds that Bey-lund did not voluntarily consent, it will have to address whether the evidence obtained in the search must be suppressed when the search was carried out pursuant to a state statute, see Heien v. North Carolina, 574 U.S. —, —, 135 S.Ct. 530, 537-539, 190 L.Ed.2d 475 (2014), and the evidence is offered in an administrative rather than criminal proceeding, see Pennsylvania Bd. of Probation and Parole v. Scott, 524 U.S. 357, 363-364, 118 S.Ct. 2014, 141 L.Ed.2d 344 (1998). And as Beylund notes, remedies may be available to him under state law. See Brief for Petitioner in No. 14-1507, pp. 13-14.

Birchfield, at 2186-87 n.9.

[¶ 9] On remand from the United States Supreme .Court, we consolidated Beylund’s appeal with another administrative license suspension case, and for purposes of those appeals only, we assumed the drivers’ consent to the warrantless blood tests incident to arrest was involuntary and held the exclusionary rule does not require suppression of the results of the warrantless blood tests incident to arrest in the license suspension proceedings. Beylund v. Levi, 2017 ND 30, ¶¶ 1, 7, 12, 889 N.W.2d 907.

[¶ 10] Birchfield established that war-rantless breath tests incident to a lawful arrest for drunk driving do not violate the Fourth Amendment, but absent another applicable exception to the warrant requirement, warrantless blood tests incident to a lawful arrest for drunk driving violate the Fourth Amendment. Birchfield, however, did not specifically address war-rantless pre-arrest onsite screening tests of a driver’s breath. Like Beylund v. Levi, this is an administrative license proceeding.' Unlike the driver in Beylund, who submitted to a warrantless blood test incident to arrest, Barrios-Flores refused to submit to a warrantless pre-arrest onsite screening test of his breath and his license was revoked for that refusal.

[¶ 11] Breath tests are searches under the Fourth Amendment. Birchfield, 136 S.Ct. at 2173. In the aftermath of Birchfield, the issue in this case requires analysis of a warrantless pre-arrest breath test in the context of an administrative license revocation proceeding. In a pre-Birchfield decision involving a criminal prosecution for refusing a preliminary on-site screening test of a driver’s breath, this Court held language in N.D.C.C. § 39-20-14(1) requiring officers to have reason to believe a driver committed a moving traffic violation requires reasonable suspicion of driving under the influence of alcohol before a law enforcement officer may request a driver to submit to a preliminary onsite screening test of the driver’s breath. State v. Baxter, 2015 ND 107, ¶¶ 6-12, 863 N.W.2d 208. On remand from the United States Supreme Court for further consideration in light of Birchfield v. North Dakota, we vacated our earlier decision in Baxter, 2015 ND 107, 863 N.W.2d 208, and remanded to the district court to develop the issue about pre-arrest breath tests, “[b]ecause Baxter’s conviction involved refusal of a pre-arrest breath test, which was not analyzed within the, holding in Birchfield v. North Dakota.” State v. Baxter, 2016 ND 181, ¶ 5, 885 N.W.2d 64. We now consider that issue in the context of an administrative license revocation proceeding.

[¶ 12] Section 39-20-14(1), N.D.C.C., provides that a law enforcement officer naay request a preliminary oqsite screening test of an individual’s breath when the officer “has reason to believe that the individual committed a moving traffic violation or was involved in a traffic accident as a driver, and in conjunction with the violation or the accident the officer has, through the officer’s observations, formulated an opinion that the individual’s body contains alcohol.” Section 39-20-04(1), N.D.C.C., provides that “[i]f a person refuses to submit to testing under section ... 39-20-14, none may be given.” The results of a “screening test must be used only for determining whether or not a further test shall be given under the provisions of section 39-20-01.” N.D.C.C. § 39-20-14(3).

[¶ 13] Under N.D.C.C. § 39-20-05(3), the limited scope of an administrative hearing for refusing to submit to an onsite screening test requires a determination of: (1) whether the law enforcement officer had reason to believe the person committed a moving traffic violation or was involved in an accident as a driver; (2) whether in conjunction with the violation or accident, the officer has, through the officer’s observations, formulated an opinion that the person’s body contains alcohol; and (3) whether the person refused to submit to the onsite screening test.

[¶ 14] In our pre-Birchfield case in Baxter, 2015 ND 107, ¶¶ 6-12, 863 N.W.2d 208, we considered the requirements for requesting a warrantless pre-arrest onsite screening test of a person’s breath. We said the purpose of an onsite screening test was to insure that sufficient probable cause exists to warrant a subsequent arrest. Id. at ¶ 9. We recognized other courts had relied on the balancing test of Terry v. Ohio, 392 U.S. 1, 21, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968), to find “the level of intrusion occasioned by the administration of [preliminary breath] tests was ‘outweighed by the strong law enforcement interest in attempting to keep a suspected drunk driver off the roads.’” Baxter, at ¶ 10 (quoting State v. McGuigan, 184 Vt. 441, 965 A.2d 511, 516-17 (2008)). We said probable cause was not required before an onsite screening test of an individual’s breath may be requested by law enforcement officers, and we construed N.D.C.C. § 39-20-14(1) to require reasonable suspicion of driving under the influence before a law enforcement officer may request a driver to submit to an onsite screening test of the driver’s breath. Baxter, at ¶ 10. We affirmed Baxter’s criminal conviction for refusing a test, concluding:

Here, the record clearly establishes that the deputy had reasonable suspicion, if not probable cause, to believe Baxter was driving under the influence of alcohol. Because a limited Terry search based on reasonable suspicion is constitutionally permissible, see, e.g., State v. Parizek, 2004 ND 78, ¶ 17, 678 N.W.2d 154, the deputy’s request that Baxter submit to an onsite screening test did not run afoul of the Fourth Amendment. Baxter was not forced to submit to the onsite screening test. Rather, he took advantage of the statutory right to refuse the test, and no test was given. As in Beylund [v. Levi], 2015 ND 18, ¶ 24, 859 N.W.2d 403, and in Birchfield, 2015 ND 6, ¶ 15, 858 N.W.2d 302, Baxter points to nothing in the implied consent laws that would require him to submit to an onsite screening test in violation of the Fourth Amendment. Furthermore, the same reasonableness analysis we employed in Beylund, at ¶¶ 23-29, and Birchfield, at ¶ 5, is equally applicable to criminalizing the refusal to submit to an onsite screening test.

Based on our holdings in Birchfield and Beylund-, we conclude Baxter’s rights under the Fourth Amendment and N.D. Const. art. I, § 8, and the unconstitutional conditions doctrine, were not violated in this case.

Baxter, at ¶¶ 11-12.

[¶ 15] Baxter addressed a criminal conviction for refusing an onsite screening test. This case, however, deals with an administrative license revocation for refusing the test. In Birchfield, the United States Supreme Court differentiated between the intrusiveness of breath and blood tests, stating breath tests do not “ ‘implicate] significant privacy concerns.’” 136 S.Ct. at 2176, 2178 (quoting Skinner v. Ry. Labor Executives’ Ass’n, 489 U.S. 602, 626, 109 S.Ct. 1402, 103 L.Ed.2d 639 (1989)). First, the Supreme Court explained the “physical intrusion [of breath tests] is almost negligible” because they “‘do not require piercing the skin’ and entail ‘a minimum of inconvenience.’” Birchfield, at 2176 (quoting Skinner, 489 U.S. at 625, 109 S.Ct. 1402). Second, the Supreme Court said breath tests only reveal a person’s blood-alcohol content and no sample remains for law enforcement to possess while blood samples can be stored and potentially reveal a wealth of additional highly personal information. Birchfield, at 2177. Finally, the Court said participation in breath tests is unlikely to enhance the embarrassment inherent in an arrest, and the act of blowing into a breathalyzer is not inherently embarrassing and normally takes place out of public view. Id.

_ [¶ 16] A warrantless pre-arrest onsite screening test of an individual’s breath implicates a similar lack of intrusiveness as a breath test incident to an arrest and serves the purpose of providing additional evidence about impairment before necessitating or negating the need for a subsequent arrest. See N.D.C.C. § 39-20-14(3) (results of screening test may be used only for determining whether or not a further test shall be given). In Birchfield v. North Dakota, 136 S.Ct. at 2185, in the context of analyzing implied-consent laws under the consent exception to, the warrant requirement, the Court said nothing in that case should be read to cast doubt on the “general concept of implied-consent laws that impose civil penalties and evidentiary consequences on motorists who refuse to comply” with those laws.

[¶ 17] We conclude Birchfield v. North Dakota, does not change our analysis in Baxter for pre-arrest onsite screening tests of an individual’s breath for purposes of administrative license proceedings. We construe N.D.C.C. § 39-20-14(1) to require reasonable suspicion of driving under the influence before a law enforcement officer may request a driver to submit to a pre-arrest warrant-less onsite screening test of an individual's breath and a driver’s license may be revoked for refusing a test based upon the officer’s reasonable suspicion the person was driving under the influence. We conclude a pre-arrest warrantless onsite screening test of an individual’s breath based on reasonable suspicion the individual was driving while impaired does not violate the Fourth Amendment or N.D. Const. art. I, § 8.

[¶ 18] Here, the hearing officer found the law enforcement officer observed a vehicle driven by Barrios-Flores was speeding and initiated a traffic stop, Barrios-Flores had bloodshot watery eyes, and he admitted he had a couple of beers. Evidence in the record supports the hearing officer’s findings, and a reasoning mind could reasonably conclude the hearing officer’s findings are supported by a preponderance of the evidence. Those findings provided the law enforcement officer with a reasonable suspicion Barrios-Flores was driving while impaired to request an onsite screening test of Barrios-Flores’ breath and he refused the test. We therefore conclude the Department’s decision revoking Barrios-Flores’ driving privilege is in accordance with the law and did not violate his constitutional lights.

IV

[¶ 19] We affirm the judgment affirming the Department’s decision.

[¶ 20] Carol Ronning Kapsner Lisa Fair McEvers Gerald W. VandeWalle, C.J. [¶ 21] The Honorable Jerod E. Tufte was not a member of the Court when this case was heard and did not participate in this decision. Surrogate Judge Dale V. Sandstrom, sitting.

1 . The officer's advisory in this case was given prior to Birchfield v. North Dakota.