Filed 09/15/2020 by Clerk of Supreme Court

IN THE SUPREME COURT

STATE OF NORTH DAKOTA

2020 ND 193

Brandon James Jorgenson, Appellee

v.

Thomas Sorel, Director of 

the North Dakota Department

of Transportation, Appellant

No. 20190411

Appeal from the District Court of Stark County, Southwest Judicial District, 

the Honorable William A. Herauf, Judge.

AFFIRMED.

Opinion of the Court by Tufte, Justice.

Thomas F. Murtha, Dickinson, N.D., for appellee.

Douglas B. Anderson, Assistant Attorney General, Office of Attorney General, 

Bismarck, N.D., for appellant.
1

Jorgenson v. NDDOT

No. 20190411

Tufte, Justice.

[¶1] The Department of Transportation appeals from a district court 

judgment that reversed a hearing officer’s decision suspending Brandon 

Jorgenson’s driving privileges for 180 days. The Department argues the court 

erred in determining that, regardless of whether Jorgenson raised a proper 

objection at the administrative hearing regarding the omission of the phrase 

“directed by the law enforcement officer” from the implied consent advisory, 

the court may reverse the hearing officer’s decision if its findings of fact are not 

supported by the preponderance of evidence. We affirm.

I

[¶2] In May 2019, a Stark County deputy sheriff arrested Jorgenson for the 

offense of driving while under the influence of intoxicating liquor. After a June 

2019 administrative hearing, a Department hearing officer issued a decision 

suspending Jorgenson’s driving privileges for 180 days.

[¶3] Jorgenson petitioned the hearing officer for reconsideration, arguing law 

enforcement lacked a reasonable articulable suspicion to stop him, rendering 

his arrest invalid, and failed to inform him as required under N.D.C.C. § 39-

20-01(3)(a). The hearing officer purported to grant the reconsideration petition 

but refused to grant Jorgenson’s requested relief or to reconsider the 

Department’s ultimate decision. In a July 12, 2019, disposition, the hearing 

officer stated:

The petition for reconsideration was granted. As all of the 

issues raised in the petition for reconsideration were raised and 

considered in the original proceeding, there was no new evidence 

to consider. After a thorough review of the petition, the file and the 

evidence in the record, your prayer for relief, that the matter be 

dismissed, is denied. The decision to suspend will remain in effect.

(Emphasis added.)
2

[¶4] Jorgenson appealed to the district court, and the court reversed the 

hearing officer’s decision. In its October 23, 2019, memorandum opinion and 

order, the court held it could review the hearing officer’s finding that the 

deputy had read the implied consent advisory in its entirety under the 

reasoning mind standard and concluded the deputy’s reading of the implied 

consent advisory did not satisfy the statutory requirements. Relying on our 

decision in City of Bismarck v. Vagts, 2019 ND 224, ¶ 18, 932 N.W.2d 523, the 

court explained:

Since the Supreme Court has held omission of the phrase 

“directed by law enforcement” is substantive, the implied consent 

advisory read by [the deputy] does not satisfy N.D.C.C. § 39-20-

01(3)(a) and therefore the results of the breath test must be 

excluded.

II

[¶5] The Department argues the district court erred in reversing the hearing 

officer’s decision. The Administrative Agencies Practice Act, N.D.C.C. ch. 28-

32, governs the review of the Department’s decision suspending or revoking a 

driver’s license. Sutton v. N.D. Dep’t of Transp., 2019 ND 132, ¶ 4, 927 N.W.2d 

93. This Court reviews the Department’s original determination, not the 

district court’s decision. Id. However, “[i]f the district court’s analysis is sound, 

we give it due respect.” Id. This Court reviews the appeal of an administrative

agency decision in the same manner as the district court. N.D.C.C. §§ 28-32-

46, 28-32-49. This Court has explained:

Our review is limited and we give great deference to the 

agency’s findings. We do not make independent findings of fact 

or substitute our judgment for that of the agency; instead, we 

determine whether a reasoning mind reasonably could have 

concluded the findings were supported by the weight of the 

evidence from the entire record.

Sutton, at ¶ 4 (citation omitted). “Once the facts have been established by the 

administrative hearing officer, their significance presents a question of law, 

which we review de novo.” Id. (citation and quotation marks omitted). 
3

Questions of law are fully reviewable on appeal. May v. Sprynczynatyk, 2005 

ND 76, ¶ 5, 695 N.W.2d 196.

III

[¶6] The Department contends the district court erred in reversing the 

Department’s decision because Jorgenson did not properly object to admission 

of the Intoxilyzer test results at the administrative hearing on grounds the 

implied consent advisory given by the deputy omitted the phrase “directed by 

the law enforcement officer.”

[¶7] At the time of arrest, N.D.C.C. § 39-20-01(3)(a) provided:

The law enforcement officer shall inform the individual charged 

that North Dakota law requires the individual to take a chemical 

test to determine whether the individual is under the influence of 

alcohol or drugs and that refusal of the individual to submit to a 

test directed by the law enforcement officer may result in a 

revocation of the individual’s driving privileges for a minimum of 

one hundred eighty days and up to three years. In addition, the 

law enforcement officer shall inform the individual refusal to take 

a breath or urine test is a crime punishable in the same manner as 

driving under the influence. If the officer requests the individual 

to submit to a blood test, the officer may not inform the individual 

of any criminal penalties until the officer has first secured a search 

warrant.

(Emphasis added.) Section 39-20-01(3)(b), N.D.C.C., stated, “A test 

administered under this section is not admissible in any criminal or 

administrative proceeding to determine a violation of section 39-08-01 or this 

chapter if the law enforcement officer fails to inform the individual charged as 

required under [N.D.C.C. § 39-20-01(3)(a)].”

[¶8] In Vagts, 2019 ND 224, ¶ 17, 932 N.W.2d 523, this Court concluded that 

“the officer’s omission of the phrase ‘directed by the law enforcement officer’ 

was a substantive omission and did not comply with the statutory 

requirements for the implied consent advisory.” This Court held that the 

advisory given “did not substantively comply with the statutory requirement 
4

that the individual charged must take a chemical test ‘directed by the law 

enforcement officer’ and that the result of a subsequent breath test [was] 

inadmissible under the applicable language of N.D.C.C. § 39-20-01(3)(b).”

Vagts, at ¶ 18.

[¶9] It is undisputed in this case that the deputy omitted the phrase “directed 

by the law enforcement officer” from the implied consent advisory. Under our 

decision in Vagts, therefore, the district court properly reversed the hearing

officer’s decision.

[¶10] The Department nevertheless argues that application of this Court’s 

decision in Vagts should be limited to pending cases in which this issue has 

been properly raised and preserved before the administrative tribunal. The 

Department contends Jorgenson waived his argument about the omission from 

the implied consent advisory by failing to raise a proper objection at the 

administrative hearing. The Department argues the argument was not tried 

by the parties’ express or implied consent before the district court and the court 

erred in reviewing the issue. It further contends the district court erred in 

reversing the hearing officer’s finding of fact because no precedent at the time 

controlled whether omission of the phrase “directed by the law enforcement 

officer” was a “substantive omission” rendering the implied consent advisory 

deficient.

[¶11] Jorgenson responds, however, that the district court correctly reversed 

the hearing officer’s decision because law enforcement failed to inform 

Jorgensen as required under N.D.C.C. § 39-20-01(3)(a). He asserts that the 

Department has inaccurately described the hearing officer’s disposition of his 

petition for reconsideration and that he did not waive his argument regarding 

the hearing officer’s finding that law enforcement gave Jorgenson a complete 

advisory.

[¶12] Generally, the North Dakota Rules of Evidence govern admissibility 

of evidence at an adjudicative hearing before an administrative agency, 

unless application of the rules is expressly waived by the hearing officer.

N.D.C.C. § 28-32-24(1) (“An administrative agency, or any person conducting 
5

proceedings for it, may waive application of the North Dakota Rules of 

Evidence if a waiver is necessary to ascertain the substantial rights of a party 

to the proceeding, but only relevant evidence shall be admitted. The waiver 

must be specifically stated, orally or in writing, either prior to or at a hearing 

or other proceeding.” (emphasis added)); see May, 2005 ND 76, ¶ 24, 695 

N.W.2d 196. “A hearing officer is afforded broad discretion to control the 

admission of evidence at the hearing, and the decision to admit or exclude 

evidence will only be reversed on appeal if the hearing officer abused his 

discretion.” May, at ¶ 24.

[¶13] To preserve an issue for appeal, this Court has required an argument to 

be raised before the hearing officer and identified in the specifications of error 

to the district court. See, e.g., May, 2005 ND 76, ¶ 31, 695 N.W.2d 196 (holding 

hearing officer did not abuse his discretion in admitting the Intoxilyzer test 

results when no timely, specific foundation objection based on claimed facial 

irregularity was made, waiving the objection to the proffered evidence); Richter 

v. N.D. Dep’t of Transp., 2010 ND 150, ¶ 21, 786 N.W.2d 716 (“Because this 

issue was not raised before the hearing officer, was not specifically stated in 

his specifications of error in accordance with N.D.C.C. § 28-32-42(4), and was 

not adequately supported in his appellate brief to this Court, we decline to 

address it in this appeal.”).

[¶14] The disposition of this case turns on the precise language used in the 

hearing officer’s July 12, 2019, disposition of Jorgenson’s petition for 

reconsideration. This disposition states both that the petition for 

reconsideration was “granted” and that “all of the issues raised in the petition 

for reconsideration were raised and considered in the original proceeding.”

This presumably includes the argument Jorgenson raised that the hearing 

officer erred because law enforcement failed to inform Jorgensen as required 

under N.D.C.C. § 39-20-01(3)(a). The Department’s hearing officer was thus

presented with the argument raised in this appeal.

[¶15] In the Department’s original decision, the hearing officer found the 

deputy had read the implied consent advisory “in its entirety.” Rather than 

deeming the issue waived in ruling on the petition for reconsideration, the 
6

hearing officer in the disposition specifically stated the issue was raised and 

considered. Insofar as the hearing officer “granted” the petition, we construe

that language as the hearing officer having considered the specific issues 

raised in the petition.

[¶16] Because the hearing officer considered the issue presented on appeal 

regarding the implied consent advisory and because Jorgenson identified the 

issue in his specification of errors to the district court, we hold that the issue

was not waived. We therefore conclude the district court did not err in 

reversing the hearing officer’s decision.

IV

[¶17] The Department’s remaining arguments are either without merit or 

unnecessary to our decision. The judgment is affirmed.

[¶18] Jerod E. Tufte 

Lisa Fair McEvers

Jon J. Jensen, C.J.

Daniel J. Crothers

Gerald W. VandeWalle