Colling v. Hjelle

125 N.W.2d 453, 1963 N.D. LEXIS 131

• Court: North Dakota Supreme Court
• Decided: December 19, 1963
• Docket: 8088
• Status: Published

Opinions

MORRIS, Chief Justice.

This is an appeal by the State Highway Commissioner and the director of the Safety Responsibility Division from an order of the District Court of Burleigh County reversing an order of the State Highway Commissioner which revoked motor vehicle operator’s license number 22231, issued to Maurice Colling. The order of the district court also restored the license to Colling. In revoking the license, the State Highway Commissioner purported to act pursuant to Chapter 39-20, NDCC, as amended by Chapter 269, Session Laws N.D.1961. Upon the revocation of his driver’s license, Colling requested and was granted a hearing before the Commissioner pursuant to Section 39-20-05, NDCC. Colling then petitioned the district court for a review of the adverse determination of the State Highway Commission pursuant to Section 39-20-06, ND CC. Under that section the district court is required to determine the matter upon the record made before the Commissioner, and no additional evidence may be heard.

At the hearing in the district court the only evidence presented was a transcript of the testimony of patrolman Templeton of the Bismarck Police Department. We summarize his testimony. On December 22, 1962, at about two o’clock a. m., the patrolman observed Colling driving west on Highway 10 in Bismarck, and approaching the Memorial Bridge which spans the Missouri River between Bismarck in Burleigh County and the adjacent county of Morton. The speed limit at the point of observation was 25 miles per hour and Colling was driving about double that limit. The patrolman followed Colling across the bridge into the adjacent county of Morton, where he was apprehended by the officer. The patrolman asked Colling to get out of his car and walk back to the patrolman’s car. He was weaving and staggering, and there was a strong smell of alcohol about him. On demand he showed the patrolman his driver’s license. They sat in the patrolman’s car and the patrolman told Colling that he was under arrest for driving a vehicle while under the influence of alcoholic liquor. The patrolman drove Colling to the Bismarck police station, and there he asked him to take a “drunkometer” test, which Colling refused to do. Thereafter the patrolman filled out an affidavit to the effect that Colling had been arrested and had refused to submit to the test, which affidavit he mailed to the Safety Responsibility Division of the Highway Department. The patrolman also testified that at a subsequent hearing on the matter “Mr. Colling was found not guilty.” He also testified that as Colling drove across the bridge his car was weaving and almost hit the right side of the bridge twice as he went across. The patrolman had no warrant of arrest. The controlling issue in this case is whether Colling at the time he was asked to take the “drunkometer” test was under arrest as that term is used in Chapter 39-20, NDCC, as amended. Section 1 of that Chapter (39-20-01, NDCC) provides:

“Any person who operates a motor vehicle upon the public highways of this state shall be deemed to have given consent subject to the provisions of this chapter to a chemical test, or tests, of his blood, breath, saliva, or urine for the purpose of determining the alcoholic content of his blood. The test or tests shall be administered at the direction of a law enforcement officer only after placing such person except persons mentioned in section 39-20-03 under arrest and informing him that he 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. The arresting officer shall determine which of the aforesaid tests shall be used.”

The trial court expressed the view that the arrest, being made without a warrant, could only legally be made for an offense committed in the presence of the officer and that the acquittal establishes that no offense was committed in the presence of the arresting officer and therefore no legal arrest could be made without a warrant. On the other hand, the Commissioner contends that regardless of the acquittal, the arrest was legal because the facts are such that the patrolman had reasonable grounds to believe that Colling was driving his motor vehicle while under the influence of intoxicating liquor, and that in any event the acquittal is not conclusive in this proceeding and is not binding on the Commissioner.

The authority of an officer to make an arrest without a warrant is derived from statutes and varies in different states because of different statutory provisions. Out statute is Section 29-06-15, NDCC, and provides:

“29-06-15. Arrest without warrant.— A peace officer, without a warrant, may arrest a person:

“1. For a public offense, committed or attempted in his presence;

“2. When the person arrested has committed a felony, although not in his presence;

“3. When a felony in fact has been committed, and he has reasonable cause to believe the person arrested to have committed it;

“4. On a charge, made upon reasonable cause, of the commission of a felony by the party arrested; or

“5. For such public offenses, not classified as felonies and not committed in his presence as provided for under section 29-06-15.1.”

Paragraph 5 of the above-quoted section refers to Section 29-06-15.1, NDCC, which in turn provides that:

“A police officer at the scene of a traffic accident may arrest without a warrant any driver of a vehicle who is a nonresident of this state and who is involved in the accident when based upon personal investigation, the officer has reasonable and probable grounds to believe that the person has committed any offense under the provisions of title 39 of this code in connection with the accident, and if the officer has reasonable and probable grounds to believe the person will disregard a written promise to appear in court.”

Section 29-06-16, NDCC, authorizes a peace officer at night to arrest a person for a public offense without a warrant if the offense was committed or attempted in his presence, or

“He has reasonable cause to believe that the person arrested has committed a felony, though it afterwards appears that the felony was not committed.”

This is the only statutory provision that we have been able to find that authorizes and therefore legalizes an arrest though it after-wards appears that the crime for which the arrest was made was not committed, and that authorization is specifically restricted to felonies.

It has been suggested that the legislature in the enactment of Chapter 39-20, NDCC (known as the Implied Consent Law), intended to vest law enforcement officers with broader powers' of arrest than those applicable to other misdemeanors. However, the examination of legislative journals and a comparison of the bill originally introduced with the law as finally enacted establishes the contrary,

Section 1, of Chapter 39-20, ND CC, was introduced in the 1959 session of the legislature as Senate Bill No. 142. The first section of the original bill read as follows:

“Any person who operates a motor vehicle upon the public highways of this state shall be deemed to have given consent subject to the provisions of this act to a chemical test, or tests, of his blood, breath, saliva, or urine for the purpose of determining the alcoholic content of his blood. The test, or tests, shall be administered at the direction of a law enforcement officer having reasonable grounds to believe the person has been driving or was in actual physical control of a motor vehicle upon the public highways while under the influence of intoxicating liquor.”

The original bill was amended during passage in several material respects. Particularly revealing as to legislative intent was an amendment proposed by the senate judiciary committee to

“Delete the words ‘having reasonable grounds to believe the person has been driving or was in actual physical control of' and insert the following words in lieu thereof: ‘only after placing such person under arrest and informing him that he is or will be charged with the offense of driving.’ ”

Journal of the Senate of the 36th Legislative Assembly of the State of North Dakota, page 456. By adopting this amendment the legislature required that an arrest be made before the officer was empowered to direct the administration of a chemical test. It rejected and struck out the provision that the test could be directed by an officer “having reasonable grounds to believe” the person had been driving a motor vehicle upon the highway while under the influence of intoxicating liquor. We also believe that the legislature had in mind that if the arrest was made without a warrant it must be for the commission of the offense in the presence of the arresting officer and that such commission of the offense was a basic prerequisite to the right to require the person whom the officer had apprehended to take the chemical test prescribed by the statute and upon refusal to do so to suffer the penalty of being deprived of his license to drive a motor vehicle upon the public highway. The arrest without a warrant to be effective must be a lawful arrest as prescribed by statute and not one made because the officer had reasonable grounds to believe that the person apprehended had committed the offense of driving while intoxicated.

The importance of the lawfulness of the arrest is emphasized by the fact that the arrest not only affects the revocation of the operator’s license, but extends to the admissibility of the refusal to submit to the test or tests as evidence in other cases under Section 39-20-03, which provides:

“If the person under arrest refuses to submit to the test or tests, proof of refusal shall be admissible in any civil or criminal action or proceeding arising out of acts alleged to have been committed while the person was driving or in actual physical control of a vehicle upon the public highways while under the influence of intoxicating liquor, provided the person shall first have testified in the action.”

Section 39-20-11 makes the provisions of the chapter applicable to prosecutions for violations of municipal ordinances prohibiting the driving or control of a motor vehicle while under the influence of intoxicating liquor. The latter section was not in the original bill as introduced. It was added by amendment during passage.

In 5 Am.Jur.2d, Arrest, Section 32, it is said:

“According to one view, an officer who arrests without warrant on a misdemeanor charge acts at his peril, since the arrest will be unlawful if the offense was actually not committed, even though the officer acts on reasonable grounds and in good faith. Under this view, it has been held that acquittal of the misdemeanor conclusively shows the arrest to have been unlawful, although there is also authority to the contrary.”

We find in Wharton’s Criminal Law and Procedure (Anderson), Section 1597,

“ * * *. when no offense has been perpetrated, circumstances warranting a reasonable belief that it was committed will not justify the officer in making the arrest without a warrant.”

In support of this statement the author cites State v. Mobley, 240 N.C. 476, 83 S.E.2d 100.

In Restatement of the Law, Torts, Section 119, under Illustration o, it is said:

“To create the privilege to arrest another, it is not enough that the actor —whether a private person or a peace officer — reasonably suspects that the other is committing a breach of the peace, except as stated in Clause (a), and in Section 121(c) where the actor is a peace officer and he arrests a participant in an affray. If in fact no breach of the peace has been commit-ed, a mistaken belief on the part of the actor, whether induced by mistake of law or of fact and however reasonable, that a breach of the peace has been committed by the other, does not confer a privilege to arrest under Clause (c).”

The law with respect to the legality of arrests is sometimes confused with the law pertaining to malicious prosecution where a different rule applies. The different rules are well illustrated in Muniz v. Mehlman, 327 Mass. 353, 99 N.E.2d 37, which involved a count for false arrest or imprisonment and a count for malicious prosecution.

The distinction between the rules applicable to the two counts is pointed out in a note at the bottom of page 359, 327 Massachusetts, page 41, 99 N.E.2d, which says:

“It is important to keep this distinction in mind. For example, in the present case there was evidence in the court below tending to prove that the plaintiff did not in fact commit the offenses for which complaints were brought, and there was also evidence that he did. But the question was not whether he was in fact guilty but whether the defendant had probable cause to believe that he was. In the count for false imprisonment the issue was just the reverse. There, since the arrests were for misdemeanors, the issue was not that of probable cause but whether the plaintiff had in fact committed the offenses for which he was arrested.”

In 5 Am.Jur.2d, Arrests, Section 41, Mun-iz v. Mehlman, supra, is cited in support of the following statement:

“In some jurisdictions, probable cause will justify an officer in stopping a vehicle to investigate the driver’s condition; but if he goes further and makes the arrest, probable cause is no longer enough, and he must show that the offense for which the arrest was made was actually committed.”

In Commonwealth v. Robey, Ky., 337 S.W.2d 34, it is said:

“In such cases as Parrott v. Commonwealth, Ky., 287 S.W.2d 440, Commonwealth v. Vaughn, Ky., 296 S.W.2d 220, and Thomason v. Commonwealth, Ky., 322 S.W.2d 104, we have held that where a search has been made incident to an arrest the evidence obtained by the search is not admissible in a prosecution. for an offense disclosed by the search, if a charge was made of the offense for which the arrest was made and the defendant has been acquitted on that charge or the charge is still pending. The reason is that a search without a warrant can be made only incident to a lawfitl arrest, and if there has been an acquittal of the charge of the offense for which the arrest was made, or the charge is pending for trial, the legality of the arrest cannot be established.”

However, in United States v. Sykes, 6 Cir., 305 F.2d 172, the Federal court, while conceding the rule in Kentucky with respect to the inadmissibility- of the evidence after acquittal which establishes the invalidity of the arrest, holds that in the absence of an acquittal the question of validity of the arrest is one for the Federal courts to decide upon the basis of the evidence therein produced.

In Edgin v. Talley, 169 Ark. 662, 276 S.W. 591, 42 A.L.R. 1194, it is said:

“ * * * a misdemeanor must have been actually committed to justify an arrest without a warrant, and the officer must determine at his peril whether an offense has been committed or not.”

The seeming divergence of authority indicated by the above quotation from American Jurisprudence is mainly found among the cases dealing with the liability for damages growing out of actions for false arrest and false imprisonment, but here the question is not one of damages but one of determining the intention of the legislature as indicated by the amendments to the original bill during the course of enactment. The duty of the legislature was at least twofold : to provide reasonable protection and safety for persons legitimately using the public highways from hazardous driving by others, and to safeguard the rights of persons to whom the state had granted the personal and valuable right of operating vehicles from unwarranted forfeitures of their licenses. Recent cases have emphasized the importance of protecting the latter right. In State v. Moseng, 254 Minn. 263, 95 N.W.2d 6, it is said:

“Much has been said as to whether a license to operate a motor vehicle is a right or a privilege. It has been variously denominated as a privilege in the nature of a right and as an important privilege or right under our present mode of living. No one will deny that we have reached a time in our modern way of life when the motor vehicle has clearly become a necessity to many people. The very livelihood of many, such as chauffeurs, truckers, traveling salesmen, men who work in skilled or unskilled labor, depends upon the operation of a motor vehicle. Their drivers’ licenses are just as valuable as a license to engage in an occupation or profession. Clearly one’s inalienable right to liberty and the pursuit of happiness is curtailed if he may be unreasonably kept off the highways maintained by him as a citizen and taxpayer. It was recently said in Wall v. King, 1 Cir., 206 F.2d 878, 882, that ‘the freedom to make use of one’s own property, here a motor vehicle, as a means of getting about from place to place, whether in pursuit of business or pleasure, is a “liberty” which under the Fourteenth Amendment cannot be denied or curtailed by a state without due process of law.’ In any event, the right of a citizen to drive a motor vehicle upon the highways is to be safeguarded against the whim or caprice of police or administrative officers. It is therefore clear that, whether a driver’s license be termed a ‘privilege’ or a ‘right,’ such license, whether restricted or not, once granted, is of substantial value to the holder thereof and it may not be suspended or revoked arbitrarily or capriciously but only in the manner and on the grounds provided by law.”

To the same effect see Bechler v. Parsekian, 36 N.J. 242, 176 A.2d 470; Wignall v. Fletcher, 303 N.Y. 435, 103 N.E.2d 728.

The importance of the guilt of a person apprehended and upon whom a demand was made to take the test or tests for intoxication prescribed by Chapter 39-20, NDCC, must have been apparent to the legislature from the very terms of the law that was being enacted, for it was amended to provide that a test could be administered only after placing the person under arrest. No law authorized an officer to make the arrest upon suspicion or reasonable or probable cause. The arrest could be made without a warrant only for an offense committed in the presence of the officer. The refusal to take the test if he was lawfully arrested for an offense committed in the presence of the officer subjected the licensee to mandatory revocation of his operator’s license for six months. The law, further, made proof of refusal admissible in any civil or criminal action or proceeding arising out of the acts which h'e was alleged to have committed while driving or in actual physical control of a vehicle upon the highways while under the influence of intoxicating liquor provided that he had testified in the action. His refusal was also made admissible in any prosecution for the violation of a municipal ordinance prohibiting the driving or control of a motor vehicle while under the influence of intoxicating liquor. In this case, at the time the hearing was held Maurice Colling had been acquitted of the charge for which he was placed under arrest. The officer had no warrant. The crime charged was one for which a lawful arrest could be made only if committed in the presence of the officer. The acquittal established that the crime charged had not been committed either in the presence of the officer or otherwise. That determination was made by a court. It could neither be reversed nor ignored in a hearing before an administrative official who conducted the hearing, presented the evidence, questioned the witness, and made the quasi-judicial determination that resulted in the order revoking the operator’s license. We agree with the trial court that the order of revocation issued by the State Highway Commissioner was properly reversed. The order of the district court is affirmed.

STRUTZ, TEIGEN and BURKE, JJ., concur.