                Filed 5/7/20 by Clerk of Supreme Court

                 IN THE SUPREME COURT
                 STATE OF NORTH DAKOTA

                                2020 ND 92

Gregory John Schwindt,                                            Appellant
     v.
Thomas Sorel, Director of the
North Dakota Department of Transportation,                         Appellee



                               No. 20190245

Appeal from the District Court of Stark County, Southwest Judicial District,
the Honorable Dann Edward Greenwood, Judge.

AFFIRMED.

Opinion of the Court by McEvers, Justice.

Thomas F. Murtha IV, Dickinson, ND, for appellant.

Douglas B. Anderson, Assistant Attorney General, Bismarck, ND, for appellee.
                             Schwindt v. Sorel
                               No. 20190245

McEvers, Justice.

[¶1] Gregory Schwindt appeals from a district court judgment affirming a
Department of Transportation hearing officer’s revocation of his driving
privileges for 180 days. Schwindt argues North Dakota’s implied consent and
refusal laws are unconstitutional, the hearing officer erred by considering the
results of the horizontal gaze nystagmus (HGN) test, and the hearing officer
erred in finding he refused to take a chemical test. We affirm.

                                       I

[¶2] On December 14, 2018, Highway Patrol Officer Thomas Steenstrup was
dispatched to the scene of a crash involving a pickup truck and a semi-truck
on Interstate 94. Steenstrup spoke with Schwindt while Schwindt was seated
in an ambulance. Steenstrup noted an odor of alcohol and noticed Schwindt’s
eyes were bloodshot and watery. Schwindt admitted that he was the driver of
the pickup truck involved in the accident and that he had been drinking
alcohol. Steenstrup performed a HGN test on Schwindt and the results
indicated that Schwindt was impaired. Steenstrup read Schwindt the implied
consent advisory for a screening test and requested he take an Alco-Sensor
test. Schwindt consented to the screening test. The test was administered,
and the results showed Schwindt failed the test.

[¶3] Steenstrup arrested Schwindt for driving under the influence and read
him the implied consent advisory for a chemical test. Schwindt initially
consented to a blood test. Steenstrup met Schwindt at the hospital after
Schwindt was transported there by ambulance. Steenstrup read the implied
consent advisory to Schwindt a second time, and Schwindt refused to take the
blood test.

[¶4] A Report and Notice was issued to Schwindt, and Schwindt requested a
hearing. An administrative hearing was held to determine whether Schwindt’s
driving privileges should be revoked. The hearing officer found Steenstrup had
reasonable grounds to believe Schwindt was driving or in actual physical

                                      1
control of a motor vehicle while under the influence in violation of N.D.C.C. §
39-08-01, Schwindt was lawfully arrested, and he refused to submit to a blood
test to measure his body’s alcohol content. The hearing officer revoked
Schwindt’s driving privileges for 180 days.

[¶5] Schwindt petitioned for reconsideration. He argued that he had
requested the hearing remain open pending review of written closing argument
and submission of a squad video recording, he was unable to get a copy of the
recording to the hearing officer before the close of the hearing due to technical
difficulties, and he submitted the recording for review with his petition for
reconsideration. The hearing officer reviewed the petition for reconsideration
and the recording, and denied the petition.

[¶6] Schwindt appealed the hearing officer’s decision to the district court.
The court affirmed the hearing officer’s decision revoking Schwindt’s driving
privileges.

                                       II

[¶7] The Administrative Agencies Practice Act, N.D.C.C. ch. 28-32, governs
our review of the Department of Transportation hearing officer’s decision to
suspend or revoke driving privileges. Marman v. Levi, 2017 ND 133, ¶ 6, 896
N.W.2d 241. We review the Department’s decision in the same manner as the
district court and affirm the 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.


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      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.

N.D.C.C. § 28-32-46. We afford great deference to the agency’s factual findings.
Marman, at ¶ 7. We do not make independent findings of fact or substitute
our judgment for that of the agency, and our review is limited to determining
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 of law are fully reviewable on appeal. Id.

                                       III

[¶8] Schwindt argues North Dakota’s implied consent and refusal laws are
unconstitutional under the federal and state constitutions because the law
requires a driver to consent to a warrantless request to take a chemical test
and a screening test in return for the privilege to drive. He contends the laws
violate the doctrine of unconstitutional conditions, due process, the Fourth
Amendment of the United States Constitution, the Fourteenth Amendment of
the United States Constitution, and article I, sections 8 and 20 of the North
Dakota Constitution. He claims the hearing officer erred by considering the
results of the pre-arrest screening test because the implied consent and refusal
laws are unconstitutional. He also argues the implied consent and refusal laws
are unconstitutional as applied under the circumstances of this case because
he is being penalized for refusing to consent to a warrantless search of his
blood.

[¶9] This Court has previously addressed Schwindt’s constitutional
arguments about the pre-arrest screening test and his claim that the implied
consent laws are an unconstitutional condition. See, e.g., Marman, 2017 ND
133, ¶¶ 15-18, 896 N.W.2d 241 (considering constitutional arguments about
refusals of onsite screening test and post-arrest chemical test, holding implied
consent and refusal laws are not unconstitutional); Barrios-Flores v. Levi, 2017
ND 117, ¶ 17, 894 N.W.2d 888 (holding pre-arrest breath test does not violate
the Fourth Amendment or N.D. Const. art. I, § 8).


                                       3
[¶10] Schwindt also argues the refusal laws are unconstitutional facially and
as applied to him. He contends he has a constitutional right to refuse to
consent to a warrantless search of his blood and the refusal statutes violate the
doctrine of unconstitutional conditions.

[¶11] In Birchfield v. North Dakota, 136 S.Ct. 2160, 2185-86 (2016), the
Supreme Court held a motorist could not be deemed to have consented to a
blood test on pain of committing a criminal offense, but also said its prior
opinions referred approvingly to the general concept of implied consent laws
that impose civil penalties on motorists who refuse to comply, and “nothing we
say here should be read to cast doubt on them.” The Supreme Court previously
held revocation of a person’s driving privileges as a penalty for refusing to take
a blood-alcohol test is “unquestionably legitimate,” assuming appropriate
procedural protections. South Dakota v. Neville, 459 U.S. 553, 560 (1983).

[¶12] In Beylund v. Levi, 2017 ND 30, ¶ 23, 889 N.W.2d 907, we concluded the
exclusionary rule does not require exclusion of the results of a warrantless
blood test, which violated the motorist’s Fourth Amendment rights, in civil
administrative license suspension proceedings. We also held the implied
consent laws do not violate the unconstitutional conditions doctrine, stating
this Court had previously rejected the argument, the argument was also made
to the Supreme Court in Birchfield and the Court declined to adopt that
argument, and we continue to be unconvinced the implied consent laws violate
the unconstitutional conditions doctrine. Id. at ¶ 27.

[¶13] Schwindt does not acknowledge this Court’s prior cases on these issues,
argue those cases should be reversed, or explain how this case or his argument
is any different. We conclude Schwindt’s constitutional rights were not
violated and his arguments are without merit.

                                       IV

[¶14] Schwindt argues the Department should have disregarded the results of
the HGN test because the results were unreliable. He alleges that there was
evidence he has multiple medical conditions that can cause nystagmus, and



                                        4
therefore the test results are unreliable and the Department erred by
considering the results.

[¶15] A hearing officer has broad discretion to control the admission of
evidence at an administrative hearing, and the decision to admit or exclude
evidence will not be reversed on appeal unless the hearing officer abused her
discretion. Ouradnik v. Henke, 2020 ND 39, ¶ 19, 938 N.W.2d 392. An abuse
of discretion occurs if a hearing officer acts in an arbitrary, unreasonable, or
unconscionable manner, or the hearing officer misinterprets or misapplies the
law. Id.

[¶16] This Court previously held it is generally accepted that a person will
show a greater degree of nystagmus at higher levels of intoxication, a properly
conducted HGN test can identify nystagmus, and expert testimony was not
necessary to establish those widely accepted principles. City of Fargo v.
McLaughlin, 512 N.W.2d 700, 706 (N.D. 1994). We also considered the
argument that there may be other factors that cause a HGN test to be
unreliable, including physiological causes for nystagmus, and concluded those
factors can be shown through testimony and only go to the weight of the
evidence, not its admissibility. Id. at 707.

[¶17] During the hearing, Schwindt asked Steenstrup about how a head injury
could affect HGN results and objected to the admission of the evidence about
the test for purposes of determining probable cause. The hearing officer
overruled his objection. The hearing officer did not abuse her discretion by
admitting the results of the HGN test and considering the evidence in making
her decision.

                                       V

[¶18] Schwindt argues law enforcement lacked probable cause to arrest him
for driving under the influence without the results of the pre-arrest screening
test and the HGN test.

[¶19] An arrest must be supported by probable cause. Herrman v. Dir., N.D.
Dep’t of Transp., 2014 ND 129, ¶ 10, 847 N.W.2d 768. “Probable cause to arrest


                                       5
a driver for driving under the influence of alcohol exists when the officer
observes some signs of physical or mental impairment and has reason to
believe the impairment is caused by alcohol.” Sutton v. N.D. Dep’t of Transp.,
2019 ND 132, ¶ 6, 927 N.W.2d 93 (quoting Maisey v. N.D. Dep’t of Transp.,
2009 ND 191, ¶ 12, 775 N.W.2d 200). Whether probable cause exists depends
on the particular facts and circumstances apparent to the officer at the time of
the arrest. Herrman, at ¶ 10. “Detection of the odor of alcohol, observation of
signs of impairment, and failure of field sobriety tests are relevant factors in
determining probable cause to arrest a driver for driving under the influence
of alcohol.” Id. (quoting City of Devils Lake v. Grove, 2008 ND 155, ¶ 11, 755
N.W.2d 485). “Whether the facts meet the legal standard, rising to the level of
probable cause or reasonable and articulable suspicion, is a question of law
fully reviewable on appeal.” Marman, 2017 ND 133, ¶ 7, 896 N.W.2d 241
(quoting Aamodt v. N.D. Dep’t of Transp., 2004 ND 134, ¶ 12, 682 N.W.2d 308).

[¶20] As we held above, the pre-arrest screening test did not violate Schwindt’s
constitutional rights, and the results of the HGN test were admissible. The
hearing officer did not err in considering either test to determine whether
probable cause existed.

[¶21] Evidence established Schwindt was involved in a motor vehicle accident,
Steenstrup smelled an odor of alcohol upon walking up to the ambulance,
Schwindt admitted to consuming alcohol, and Steenstrup noted Schwindt’s
eyes were bloodshot and watery. Schwindt failed the HGN test, and he also
consented to a pre-arrest screening test, which results showed he failed the
test. On this record, we conclude there was probable cause to arrest Schwindt
for driving under the influence.

                                      VI

[¶22] Schwindt argues the hearing officer erred by finding he refused to take
a chemical test. He claims the implied consent advisory was incorrect or
incomplete both times it was read to him; and once he agreed to take the blood
test, it was inappropriate and a violation of due process to read the same
advisory again and also prompt him to refuse by emphasizing there would be



                                       6
no criminal charges for refusing. He also contends there is no recording
showing he refused a chemical test.

[¶23] To the extent Schwindt now argues the implied consent advisories were
incorrect or incomplete and therefore he cannot be considered to have refused
testing, he failed to include that issue in his specification of errors in his appeal
to the district court. Issues that are not identified in the specification of errors
are waived and are not preserved for judicial review. See Rounkles v. Levi,
2015 ND 128, ¶¶ 10-11, 863 N.W.2d 910. See also Ouradnik v. Henke, 2020
ND 39, ¶ 15, 938 N.W.2d 392. Whether either implied consent advisory was
incorrect or incomplete will not be addressed on appeal.

[¶24] Whether a driver refused to take a chemical test is a question of fact.
Obrigewitch v. Dir., N.D. Dep’t of Transp., 2002 ND 177, ¶ 14, 653 N.W.2d 73.

[¶25] Steenstrup testified that he read Schwindt the implied consent advisory
for a chemical blood test after he arrested Schwindt and that Schwindt initially
consented to a blood test. Steenstrup testified that he re-read the implied
consent advisory after they arrived at the hospital, that Schwindt refused the
blood test, and that Schwindt never indicated he changed his mind about
refusing the blood test. Schwindt did not testify. Schwindt submitted a video
recording he alleged showed his encounter with law enforcement but did not
show Steenstrup reading the advisory a second time or Schwindt refusing to
submit to testing.

[¶26] The hearing officer found Schwindt refused to submit to a blood test. The
hearing officer rejected Schwindt’s arguments in the petition for
reconsideration, stating she was not persuaded by the arguments or video
evidence. We conclude the hearing officer’s finding that Schwindt refused to
submit to a chemical test is supported by a preponderance of the evidence.

                                        VII

[¶27] We have considered the remaining issues and arguments and conclude
they are either unnecessary to our decision or are without merit. We conclude
the hearing officer’s findings of fact are supported by a preponderance of the


                                         7
evidence, the conclusions of law are sustained by the findings of fact, and the
decision to revoke Schwindt’s driving privileges is in accordance with the law.
We affirm the district court’s judgment.

[¶28] Lisa Fair McEvers
      Gerald W. VandeWalle
      Jon J. Jensen, C.J.
      Daniel J. Crothers
      Jerod E. Tufte




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