Holte v. North Dakota State Highway Commissioner

436 N.W.2d 250, 1989 N.D. LEXIS 47, 1989 WL 13878

• Court: North Dakota Supreme Court
• Decided: February 20, 1989
• Docket: Civ. 880173
• Status: Published

Opinions

VANDE WALLE, Justice.

The North Dakota State Highway Commissioner has appealed from a district court judgment reversing the Commissioner’s administrative suspension of Arden Holte’s driving privileges. We reverse and remand.

Following his arrest for driving under the influence of intoxicating liquor in violation of § 39-08-01, N.D.C.C., Holte was taken to the law-enforcement center in Jamestown for an Intoxilyzer test pursuant to § 39-20-01, N.D.C.C. Holte requested that he be allowed to telephone an attorney, but was told that he could “call anybody you want once we get done.” Holte then submitted, without objection, to the administration of an Intoxilyzer test, which he has conceded was fairly administered.

Holte requested and received an administrative hearing pursuant to § 39-20-05, N.D.C.C. The results of the Intoxilyzer test were received into evidence and Holte’s driving privileges were suspended for 364 days.

Holte appealed the administrative decision to the district court as permitted by § 39-20-06, N.D.C.C. Relying on Kuntz v. State Highway Com’r, 405 N.W.2d 285 (N.D.1987), the district court concluded that the arresting officer violated Holte’s statutory right to consult an attorney before deciding whether or not to submit to a chemical test, reversed the administrative decision, and ordered that Holte’s driving privileges be immediately reinstated. The Commissioner appealed and raised the following issue:

“Whether the test results from a fairly administered Intoxilyzer were properly admitted into the record of the civil administrative proceeding even though Mr. Holte was not allowed access to a telephone prior to the administration of the Intoxilyzer in order to call his attorney.”

We believe the district court’s decision represents an unduly expansive application of the decision in Kuntz. There a majority of the court held that “a person arrested for driving under the influence of intoxicating liquor has a qualified statutory right to consult with an attorney before deciding whether or not to submit to a chemical test.” Kuntz supra, 405 N.W.2d at 285. The court also held that an arrested motorist’s “exercise of that right by requesting to call his attorney before taking the test did not constitute a refusal for purposes of revoking his license under Chapter 39-20, N.D.C.C.” Id., at 288. Kuntz involved the narrow issue of what constitutes a refusal and did not involve the suppression of evidence in an administrative hearing. The majority opinion specifically noted that “[w]e do not exclude any evidence.” Id., at 286 n. 1.¹

Furthermore, in Kuntz v. State Highway Com’r, Kuntz refused to submit to the test as he had the right to do pursuant to § 39-20-04, N.D.C.C. That section specifies that if “a person refuses to submit to testing under section 39-20-01 or 39-20-14, none may be given, ...” Here Holte did submit without objection to the Intoxilyzer test. There is thus no issue of refusal before us as there was in Kuntz, for we have construed the language of § 39-20-04 to require an affirmative refusal to take the test to effectively withdraw the implied consent given the State as provided in § 39-20-01. State v. Solberg, 381 N.W.2d 197 (N.D.1986); State v. Mertz, 362 N.W.2d 410 (N.D.1985); State v. Kimball, 361 N.W.2d 601 (N.D.1985).

“A license suspension proceeding under § 39-20-05, N.D.C.C., ‘is an exercise of the police power for the protection of the public.’ ” Williams v. North Dakota State Highway Com’r, 417 N.W.2d 359, 360 (N.D.1987) [quoting Asbridge v. North Dakota State Highway Com’r, 291 N.W.2d 739, 750 (N.D.1980) ]. One of the purposes of our implied-consent law is “to provide an efficient means of gathering reliable evidence of intoxication or nonintoxication.” Asbridge, supra, at 750. To make use of the evidence gathered, our Legislature has provided that the results of a fairly administered chemical test “must be received in evidence” in any “criminal action or proceeding arising out of acts alleged to have been committed by any person while driving ... under the influence of intoxicating liquor.” Section 39-20-07, N.D.C.C. Generally, constitutional protections afforded in criminal proceedings are not applicable in administrative license-suspension proceedings. Holen v. Hjelle, 396 N.W.2d 290 (N.D.1986).²

In view of the legislative purpose to gather reliable evidence of intoxication or nonintoxication, the legislative direction to receive in evidence the results of fairly administered chemical tests, our previous holdings that an affirmative refusal is necessary to withdraw the implied consent to take the test, and the role of administrative suspension proceedings in protecting the public, we agree with the rationale of the Iowa Supreme Court in refusing to extend the exclusionary rule to civil proceedings as enunciated in Westendorf v. Iowa Dep’t of Transp., 400 N.W.2d 553, 557 (Iowa 1987):³

“The benefit of using reliable information of intoxication in license revocation proceedings, even when that evidence is inadmissible in criminal proceedings, outweighs the possible benefit of applying the exclusionary rule to deter unlawful conduct. Consequently, the exclusionary rule formulated under the fourth and fourteenth amendments was inapplicable in this license revocation proceeding.”

Contra, Whisenhunt v. Dep’t of Pub. Safety, 746 P.2d 1298 (Alaska 1987).

We conclude that the district court erred in reversing the administrative suspension of Holte’s driving privileges because of the arresting officer’s failure to allow Holte to consult an attorney before he submitted to the administration of a chemical test to determine the alcoholic content of his blood.

The district court judgment is reversed and the matter is remanded for entry of a judgment affirming the administrative decision.

ERICKSTAD, C.J., and GIERKE, J., concur.

1 . This writer, in a dissenting opinion, observed the majority engaged "despite the statement to the contrary, [in] what appears to be a form of the exclusionary rule in this civil proceeding." Kuntz v. State Highway Com’r, 405 N.W.2d 285, 292 (N.D.1987) (VandeWalle, J., dissenting). For purposes of the opinion in the instant case I have accepted the statement of the majority at its face value.

2 . The conclusion in Kuntz v. State Highway Com’r, 405 N.W.2d 285 (N.D.1987) is predicated on the language in § 29-05-20, N.D.C.C.: "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."

3 . In State v. Vietor, 261 N.W.2d 828 (Iowa 1978), (cited in Kuntz v. State Highway Com'r, supra), the Iowa Supreme Court had held that a motorist arrested for operating a motor vehicle while under the influence of an alcoholic beverage had a statutory right to call a lawyer before deciding whether or not to submit to a chemical test. The court also held that if the arrested motorist is denied that opportunity, evidence of a refusal to take a chemical test is inadmissible at a later criminal trial.