               Filed 12/12/19 by Clerk of Supreme Court

                 IN THE SUPREME COURT
                STATE OF NORTH DAKOTA

                                2019 ND 287

Corey Joseph Jesser,                                                 Appellee
     v.
North Dakota Department of Transportation,                          Appellant



                                No. 20190101


Appeal from the District Court of Burleigh County, South Central Judicial
District, the Honorable Cynthia Feland, Judge.

REVERSED.

Opinion of the Court by Crothers, Justice, in which Chief Justice VandeWalle
and Justices McEvers, Tufte, and Jensen joined. Justice Tufte filed an opinion
concurring specially in which Jensen joined. Chief Justice VandeWalle filed an
opinion concurring in the result.

Chad R. McCabe, Bismarck, ND, for appellee.

Michael T. Pitcher, Attorney General’s Office, Bismarck, ND, for appellant.
                     Jesser v. N.D. Dep’t of Transportation
                                 No. 20190101

Crothers, Justice.

[¶1] The North Dakota Department of Transportation appeals from a
judgment reversing the decision of an administrative hearing officer revoking
Corey Joseph Jesser’s driving privileges for 180 days. We reverse the district
court judgment and reinstate the administrative hearing officer’s decision
revoking Jesser’s license.

                                        I

[¶2] On June 17, 2018, law enforcement dispatch received multiple calls
about a hit and run accident involving a black SUV. Dispatch advised Morton
County Deputy Peterson that one caller heard what sounded like a moving car
dragging vehicle parts. Peterson responded and saw a trail of fluid near the
accident site which led around the block to the described vehicle.

[¶3] Jesser was standing outside the vehicle on the sidewalk near the
passenger side. The vehicle had noticeable front-end and passenger-side
damage. Peterson administered field sobriety tests and advised Jesser of the
implied consent advisory for an onsite screening test and asked Jesser to
submit to the test. Jesser refused to take the test and was arrested for driving
under the influence. Peterson gave Jesser the post-arrest implied consent
advisory and asked Jesser if he would submit to a chemical breath test. After
Jesser hesitated answering, Peterson asked Jesser if he would like to call an
attorney. Jesser stated he would, but he did not know who to call.

[¶4] Peterson escorted Jesser to the Burleigh Morton Detention Center and
asked the jailers for a telephone and telephone book. Peterson advised Jesser
he would get access to a telephone and telephone book. Jesser responded
stating, “I don’t know who to call.” Jesser did not receive a telephone and
telephone book, nor did he again mention speaking to an attorney. He did not
submit to the chemical breath test.


                                       2
[¶5] A Report and Notice was issued to Jesser. It notified him of the
Department’s intent to revoke his driving privileges. Jesser requested a
hearing. The hearing officer found Peterson had reason to believe Jesser was
involved in a traffic accident as the driver, Jesser’s body contained alcohol, and
he refused to submit to the onsite screening test. The hearing officer found
Peterson had reasonable grounds to believe Jesser was driving or in actual
physical control of a vehicle while under the influence of intoxicating liquor.
The hearing officer found Jesser was arrested and refused to submit to the
chemical breath test. The hearing officer found the limited statutory right to
an attorney was not violated. Jesser’s license was revoked for 180 days based
on his refusal of the onsite screening test and chemical test. Jesser appealed
and the district court reversed. The Department appeals.

                                        II

[¶6] “The Administrative Agencies Practice Act, N.D.C.C. ch. 28-32, governs
our review of an administrative decision suspending or revoking a driver’s
license.” Crawford v. Director, N.D. Dep’t of Transp., 2017 ND 103, ¶ 3, 893
N.W.2d 770. Under N.D.C.C. § 28-32-49, we review an appeal from a district
court judgment in an administrative appeal in the same manner as provided
under N.D.C.C. § 28-32-46, which requires a district court to affirm an agency
order unless it finds any of the following:

      “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.



                                        3
      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.

                                           III

[¶7] The Department argues the district court erred by reversing the
administrative hearing officer’s decision because the Department had
authority to revoke Jesser’s license under N.D.C.C. § 39-20-14 for refusal to
take the onsite screening test. Jesser responds that the district court properly
reversed the Department’s revocation because he requested and was denied
the opportunity to speak to counsel. Jesser also argues the holding in Kuntz
that the “failure to take the test is not a refusal upon which to revoke his
license under Chapter 39-20, N.D.C.C.” should be extended to a person’s ability
to cure refusal of the onsite screening test. Kuntz v. State Highway Comm’r,
405 N.W.2d 285, 290 (N.D. 1987). We conclude the last issue is dispositive
because, even if Jesser’s limited right to counsel was violated after his arrest,
he had no right to counsel prior to arrest when he refused to take the onsite
screening test.

[¶8] Section 39-20-04, N.D.C.C., authorizes revocation of driving privileges
upon refusal to submit to a test under section 39-20-01 or 39-20-14. Roberts v.
North Dakota Dept. of Transp., 2015 ND 137, ¶ 6, 863 N.W.2d 529. Section 39-
20-01, N.D.C.C., states1:

      “1. Any individual who operates a motor vehicle on a highway or
      on public or private areas to which the public has a right of access
      for vehicular use in this state is deemed to have given consent, and
      shall consent, subject to the provisions of this chapter, to a
      chemical test, or tests, of the blood, breath, or urine for the purpose
      of determining the alcohol concentration or presence of other



1Both N.D.C.C. § 39-20-01 and § 39-20-14 were modified in the 2019 Legislative session. We
are applying the statutes as they existed when Jesser was charged.

                                            4
      drugs, or combination thereof, in the individual’s blood, breath, or
      urine. . . .
      2. The test or tests must be administered at the direction of a law
      enforcement officer only after placing the individual . . . under
      arrest and informing that individual that the individual is or will
      be charged with the offense of driving or being in actual physical
      control of a vehicle upon the public highways while under the
      influence of intoxicating liquor, drugs, or a combination thereof.”

[¶9] Section 39-20-14, N.D.C.C., states:

      “1. Any individual who operates a motor vehicle upon the public
      highways of this state is deemed to have given consent to submit
      to an onsite screening test or tests of the individual’s breath for the
      purpose of estimating the alcohol concentration in the individual’s
      breath upon the request of a law enforcement officer who 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.”

[¶10] “[R]efusal of the screening test can be cured by consenting to take the
chemical test after arrest.” City of Mandan v. Leno, 2000 ND 184, ¶ 15, 618
N.W.2d 161; N.D.C.C. § 39-20-14. Section 39-20-14(4), N.D.C.C., states, “the
director must not revoke an individual’s driving privileges for refusing to
submit to a screening test requested under this section if the individual
provides a sufficient breath, blood, or urine sample for a chemical test
requested under section 39-20-01 for the same incident.”

[¶11] Jesser did not take the chemical test after he was arrested. Therefore,
he did not cure his prior refusal as outlined in N.D.C.C. § 39-20-14.

                                        IV

[¶12] Jesser argues if the statutory opportunity to consult with an attorney
before deciding whether to submit to a chemical test has been deprived, then
the statutory opportunity to cure the refusal of the onsite screening test also
has been deprived. The Department argues the Kuntz principle has not been


                                        5
and should not be extended to a person’s ability to cure the refusal of the onsite
screening test. We agree with the Department.

[¶13] Whether the statutory right to counsel before chemical testing under
N.D.C.C. § 39-20-01 impacts the right to cure under N.D.C.C. § 39-20-14 is a
question of first impression for this Court. We review this legal question de
novo. State v. Gasal, 2015 ND 43, ¶ 6, 859 N.W.2d 914.

[¶14] In Kuntz v. State Highway Comm’r, Kuntz was arrested after field
sobriety tests. No onsite screening test was administered. 405 N.W.2d 285, 286
(N.D. 1987). The arresting deputy asked Kuntz to take a chemical breath test
and informed him refusal of the test would result in a revocation of his driver’s
license. Id. This Court held “if an arrested person asks to consult with an
attorney before deciding to take a chemical test, he must be given a reasonable
opportunity to do so if it does not materially interfere with the administration
of the test. If he is not given a reasonable opportunity to do so under the
circumstances, his failure to take the test is not a refusal upon which to revoke
his license under Chapter 39-20, N.D.C.C.” Id. at 290.

[¶15] We have applied Kuntz to N.D.C.C. § 39-20-01. See generally In re R.P.,
2008 ND 39, 745 N.W.2d 642; Evans v. Backes, 437 N.W.2d 848 (N.D. 1989).
Kuntz only considered refusal of a test after an arrest and did not consider
failure to take the onsite screening test. However, we have not expanded the
ability to cure a refusal based on the deprivation to consult with an attorney
as outlined in Kuntz and we decline to extend Kuntz to N.D.C.C. § 39-20-14.

[¶16] The limited statutory right of a defendant to consult with an attorney
before taking a chemical test attaches only after arrest. N.D.C.C. § 29-05-20;
City of Mandan v. Leno, 2000 ND 184, ¶ 1, 618 N.W.2d. We reject the argument
that a post-arrest limited statutory right to counsel creates a pre-arrest right
because an individual is deprived of a post-arrest remedy. We decline to extend
to the revocation of an individual’s license under N.D.C.C. § 39-20-14.




                                        6
                                      V

[¶17] The holding in Kuntz is not extended to N.D.C.C. § 39-20-14. Because
Jesser did not properly cure his refusal under N.D.C.C. § 39-20-14, his license
was lawfully revoked under that section. We reverse the district court’s
judgment and reinstate the hearing officer’s decision revoking Jesser’s driving
privileges for 180 days.

[¶18] Daniel J. Crothers
      Lisa Fair McEvers
      Jon J. Jensen




Tufte, Justice, concurring specially.

[¶19] I agree with the majority that we should not extend the right announced
in Kuntz v. State Highway Comm’r, 405 N.W.2d 285 (N.D. 1987), to the
situation presented here.

[¶20] The statutory right to counsel relied on by Kuntz derives from the 1877
Dakota Territory Code of Criminal Procedure. Kuntz, 405 N.W.2d at 290
(Erickstad, C.J., dissenting). Kuntz quoted section 29-05-20 as follows:

      Delay after arrest prohibited—Attorney.—The accused in all cases
      must be taken before a magistrate without unnecessary delay, and

                                      7
      any attorney at law entitled to practice in the courts of record of
      this state, at his request, may visit such person after his arrest.

The term “his request” appears ambiguous as to whether it refers to a request
by the accused or by an attorney at law. The last antecedent rule would suggest
that “his request” refers to a request by the “attorney at law” and that “his
arrest” refers to “such person” who is visited. But the close proximity of “his
request” and “his arrest” suggests the possibility that “his” refers to the same
referent in both clauses, which is apparently how the Kuntz majority read it:
“We conclude that Kuntz was not allowed a reasonable opportunity to do so, at
his request, and that, therefore, his failure to take the test was not a refusal.”
Id. at 285-86. In footnote 1 of his dissent, then Justice VandeWalle pointed out
the majority’s failure to engage with the Highway Commissioner’s argument
that the statute provided a right to the attorney to visit the person arrested:

      The majority opinion does not discuss the argument made by
      counsel for the Commissioner that Section 29-05-20 which states
      that “any attorney at law entitled to practice in the courts of record
      of this state, at his request, may visit such person after his arrest”
      gives the attorney the right to visit the person arrested, not the
      person arrested the right to have counsel visit him. Although I
      believe the statute is grammatically susceptible of such a
      construction, I prefer the one placed upon it by the majority
      opinion.

[¶21] The section now reads:

      The accused in all cases must be taken before a magistrate without
      unnecessary delay, and any attorney at law entitled to practice in
      the courts of record of this state, at the attorney’s request, may
      visit such person after that person’s arrest.

N.D.C.C. § 29-05-20. Both instances of the word “his” have been replaced to
remove ambiguity. Where it once referred to a visit at “his request” it now
refers to “the attorney’s request.” This amendment is directly contrary to the
interpretation given by the majority in Kuntz. Despite this amendment our
cases have continued to cite Kuntz for the right of an arrested driver to consult
counsel prior to a chemical test.


                                        8
[¶22] I have grave doubts that after this amendment the statute should still
be interpreted to provide a right to consult with an attorney after arrest but
before being taken before a magistrate or even to a jail. I am also skeptical that
immediately upon arrest any accused person has a right to a phone and a phone
book to find and consult an attorney. I see nothing that would limit a right to
counsel under Section 29-05-20 to DUI cases or decisions whether to waive
Fourth Amendment rights by submitting to a chemical test. But Kuntz adopted
that interpretation, and numerous cases since then have relied on Kuntz’s
holding that an arrestee has a statutory right to attorney consultation when
deciding whether to submit to a chemical test. We do not lightly revisit settled
issues of statutory interpretation because the Legislative Assembly has ample
opportunity to correct our work if it does not comport with its intended
meaning. See Brian A. Garner The Law of Judicial Precedent 333-35 (2016).
Here, it appears the Legislative Assembly may have tried to correct our work,
but without effect. Whatever additional force stare decisis may have in
statutory interpretation cases, stare decisis does not weigh in favor of
extending a dubious precedent to another application beyond the scope of the
precedent’s holding. With full briefing and argument in a future case, we may
wish to reconsider whether Kuntz remains good law after the amendment to
the statute.

[¶23] Jerod E. Tufte
      Jon J. Jensen




                                        9
VandeWalle, Chief Justice, concurring in the result.

[¶24] I concur in the result. However, I do so from a stance different than that
of the majority.

[¶25] We have construed the applicable statutes to encourage taking the
screening and chemical tests rather than to discourage taking the tests. See
Krehlik v. Moore, 542 N.W.2d 443, 445-47 (N.D. 1996) (discussing legislative
intent relating to implied consent laws and legislature’s intent to encourage
drivers to take chemical test); see also Alvarado v. N.D. Dep’t of Transp., 2019
ND 231, ¶ 15, 932 N.W.2d 911 (VandeWalle, C.J., concurring specially).

[¶26] Thus, rather than viewing the issue as a right to counsel before taking a
screening test, I view it from the perspective of the ability and right to cure a
refusal under N.D.C.C. § 39-20-14(4) as outlined in ¶ 10 of the majority. That
section provides:

      The director must not revoke an individual’s driving privileges for
      refusing to submit to a screening test requested under this section
      if the individual provides a sufficient breath, blood, or urine
      sample for a chemical test requested under section 39-20-01 for the
      same incident.

Therefore, if the individual agrees to take a chemical test, it cures the prior
refusal to take the screening test. I realize from the special writings of some
of my colleagues’ concern with this Court’s decision in Kuntz v. State Highway
Comm’r, 405 N.W.2d 285 (N.D. 1987). But, the statutory right to counsel
before agreeing to take the chemical test has not been modified legislatively or
judicially for over 22 years; it is that right to counsel Jesser contends was
violated. Under Kuntz, if his right to counsel was violated relative to the
chemical test it also interfered with his right to cure his refusal to take the
screening test by taking the chemical test.

[¶27] However, I would nevertheless reverse the decision of the district court
that Jesser was denied a reasonable opportunity to consult with an attorney
before refusing to take the chemical test. “Whether a person has been afforded

                                       10
a reasonable opportunity to consult with an attorney is a mixed question of law
and fact.” Wetzel v. N.D. Dep’t of Transp., 2001 ND 35, ¶ 10, 622 N.W.2d 180.
This Court “review[s] mixed questions of law and fact under the de novo
standard of review.” Herrman v. Dir., N.D. Dep’t of Transp., 2014 ND 129, ¶
14, 847 N.W.2d 768. Deference is given to the Department’s findings.
Eriksmoen v. Dir., N.D. Dep’t of Transp., 2005 ND 206, ¶¶ 7, 13, 706 N.W.2d
610. Once the facts are established, their significance presents a question of
law, which we review de novo. Schoon v. N.D. Dep’t of Transp., 2018 ND 210,
¶ 7, 917 N.W.2d 199.

[¶28] The hearing officer found:

      Deputy Peterson informed Mr. Jesser of the post-arrest implied
      consent advisory for a chemical test. Deputy Peterson asked Mr.
      Jesser to submit to a chemical breath test. Deputy Peterson asked
      Mr. Jesser if Mr. Jesser would like to speak to an attorney. Mr.
      Jesser stated he would but that he did not know who to call.
      Deputy Peterson told Mr. Jesser he would have access to a
      telephone and a phone book. Mr. Jesser again stated he would not
      know who to call.

[¶29] I believe offering Jesser a telephone and a telephone book provides a
reasonable opportunity to consult with an attorney. The fact Jesser did not
know who to call does not require the officer to do more. Requiring the officer
to do more sets on the path of guaranteeing access to a competent lawyer or at
the least requiring the officer to maintain a list of available lawyers, a step we
have not heretofore taken and one I believe we should not take.

[¶30] Gerald W. VandeWalle, C.J.




                                       11
