Filed 9/12/19 by Clerk of Supreme Court

IN THE SUPREME COURT

STATE OF NORTH DAKOTA

2019 ND 231

Ewer N. Alvarado, Appellee

v.

North Dakota Department of Transportation, Appellant

No. 20190032

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

the Honorable James D. Gion, Judge.

AFFIRMED.

Opinion of the Court by Jensen, Justice.

Chad R. McCabe, Bismarck, ND for appellee.

Douglas B. Anderson, Assistant Attorney General, Bismarck, ND, for

appellant.
Alvarado v. N.D. Dep’t Of Transp.

No. 20190032

Jensen, Justice.

[¶1] The North Dakota Department of Transportation (NDDOT) appeals from a

district court judgment reversing an administrative hearing officer's decision revoking

Alvarado’s driving privileges for a period of 180 days. NDDOT argues that the

district court erred in finding that a partial reading of the implied consent advisory

rendered Alvarado’s refusal to submit to a chemical test invalid. Our statutes require

an operator to refuse a request “to submit to a test undersection 39-20-01.” A request

for testing preceded by an incomplete or inaccurate advisory is not a request “to

submit to a test under section 39-20-01.” We affirm the district court, reverse the

decision of the administrative hearing officer, and reinstate Alvarado’s driving

privileges.

[¶2] The facts of this case are not in dispute. Alvarado was stopped for a traffic

violation. Alvarado was subsequently arrested for driving under the influence. 

Following his arrest, Alvarado was read a partial implied consent advisory. The

partial advisory failed to inform him that refusing to take a chemical test could be

treated as a crime. Alvarado refused to submit to a chemical test. At issue is whether

Alvarado’s refusal can be determined to have been a refusal to submit to testing under

N.D.C.C. § 39-20-01 when he was not provided with the complete implied consent

advisory as provided by N.D.C.C. § 39-20-01. 

[¶3] Alvarado argues that a refusal to submit to chemical testing requires a request

for testing under N.D.C.C. § 39-20-01, and N.D.C.C. § 39-20-01 requires a complete

implied consent advisory precede a request for testing. Alvarado relies on our prior

opinion in Throlson v. Backes to support his assertion that a partial implied consent

warning is an invalid request for testing and prevents a determination that an operator

has refused a request for testing. 466 N.W.2d 124, 126 (N.D. 1991). See also State

v. Bauer, 2015 ND 132, ¶ 7, 863 N.W.2d 534; Gardner v. N.D. Dep't. of Transp.,

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2012 ND 223, ¶ 8, 822 N.W.2d 55. In Throlson, we observed “[i]t is axiomatic that

before there can be a ‘refusal’ to submit to testing under Section 39-20-01, there must

be a valid request for testing under the statute.” Throlson, 466 N.W.2d at 126. We

have further noted the following in the context of determining whether an operator has

refused to submit to a chemical test: 

An arrest by itself is not enough to trigger the required testing under

NDCC 39-20-01. The arresting officer must also inform the driver that

he is or will be charged with driving under the influence or being in

actual physical control. See Throlson v. Backes, 466 N.W.2d 124, 127

(N.D. 1991) (holding failure to inform driver about alcohol charge upon

arrest made test request under NDCC 39-20-01 ineffective). Here,

Holte never informed Scott that he was or would be charged with an

alcohol offense, and the officer did not direct a test under NDCC

39-20-01.

Scott v. N.D. DOT, 557 N.W.2d 385, 388 (N.D. 1996).

[¶4] The penalty of revocation of an operator’s driving privileges for refusing to

submit to a chemical test is imposed by N.D.C.C. § 39-20-04. It provides that the

penalty of revocation is imposed “[i]f a person refuses to submit to testing under

section 39-20-01” and revocation is imposed when it has been determined “the person

had refused to submit to the test or tests under section 39-20-01.” The unambiguous

language of N.D.C.C. § 39-20-04 requires a request for a test be made under

N.D.C.C. § 39-20-01. Additionally, the statutory guidance for conducting the

administrative hearing specifically provides “[t]he scope of a hearing for refusing to

submit to a test under section 39-20-01.” N.D.C.C. § 39-20-05.

[¶5] Our prior decisions in Throlson, Bauer, and Scott, support the conclusion that

an operator’s refusal is predicated upon a valid request to submit to testing pursuant

to N.D.C.C. § 39-20-01. The language of N.D.C.C. § 39-20-04, relating to the

imposition of revocation as a penalty, and N.D.C.C. § 39-20-05, relating to how the

administrative hearing is conducted, both require a request for testing be made under

N.D.C.C. § 39-20-01. We conclude that a prerequisite to a determination that an

operator has refused a request for testing is finding that the request for testing was 

made under N.D.C.C. § 39-20-01.

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[¶6] This Court reviews administrative agency decisions to suspend driving

privileges under N.D.C.C. ch. 28-32 and accords great deference to the agency’s

decision. Guthmiller, v. N.D. Dep’t of Transp., 2018 ND 9, ¶ 6, 906 N.W.2d 73. This

Court must affirm an agency’s decision unless:

1. The order is not in accordance with the law.

. . . .

6. The conclusions of law and order of the agency are not

supported by its findings of fact.

. . . . 

Id. 

[¶7] The administrative hearing officer found that Alvarado was “read a partial

implied consent advisory,” which “did not inform Mr. Alvarado that refusal of the

chemical breath test was a crime punishable in the same manner as a DUI.” The

administrative hearing officer thereafter concluded Alvarado refused to submit to

testing.

[¶8] We have concluded the legislature unambiguously required a request for a

refusal be preceded by a request for testing made in compliance with N.D.C.C. § 39-

20-01. While this Court has allowed law enforcement to deviate from a verbatim

reading of the statutory language of N.D.C.C. § 39-20-01(3)(a), we do require that

the advisory communicate all substantive information of the statute. See State v.

Vigen, 2019 ND 134, ¶ 15, 927 N.W.2d 430; see also Korb v. N.D. Dep't of Transp.,

2018 ND 226, ¶ 10, 918 N.W.2d 49 (finding that N.D.C.C. § 39-20-01(3)(a) provides

the mandatory language that must be included in the advisory). Because Alvarado

was only provided with a partial implied consent warning (he was not informed that

refusing to take a chemical test could be treated as a “crime”), the request for testing

was neither in compliance with N.D.C.C. § 39-20-01 nor sufficient to result in a

refusal to submit to testing. We therefore conclude the administrative determination

that Alvarado refused to take a chemical test is either not in compliance with the law

or not supported by the administrative findings.

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[¶9] A request to submit to testing must be made in accordance to N.D.C.C. §

39-20-01 to support a determination that there has been a refusal to submit to testing

under N.D.C.C. § 39-20-01. A request for testing subsequent to a partial implied

consent warning is not a request to test under N.D.C.C. § 39-20-01. We affirm the

district court, reverse the decision of the administrative hearing officer, and reinstate

Alvarado’s driving privileges.

[¶10] Jon J. Jensen

Jerod E. Tufte

Lisa Fair McEvers

I Concur in the result.

Daniel J. Crothers

VandeWalle, Chief Justice, concurring specially.

[¶11] Section 39-20-01(3)(a), N.D.C.C., requires specific information be

communicated by law enforcement when requesting an individual arrested for driving

under the influence submit to chemical testing. State v. Vigen, 2019 ND 134, ¶ 7, 927

N.W.2d 430. In addition to informing individuals that North Dakota law requires them

to take a chemical test, the statute mandates that law enforcement officers “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.” N.D.C.C. § 39-20-01(3)(a). Before a

chemical test may be administered, law enforcement must read the “complete implied

consent advisory.” State v. O’Connor, 2016 ND 72, ¶ 1, 877 N.W.2d 312. For an

advisory to be considered “complete,” all substantive information in the statute must

be communicated to the individual. Vigen, at ¶ 7. “It is axiomatic that before there can

be a ‘refusal’ to submit to testing under Section 39-20-01, there must be a valid

request for testing under the statute.” Gardner v. N.D. Dep’t of Transp., 2012 ND

223, ¶ 8, 822 N.W.2d 55 (quoting Throlson v. Backes, 466 N.W.2d 124, 126 (N.D.

1991)); see also State v. Bauer, 2015 ND 132, ¶ 7, 863 N.W.2d 534.

[¶12] While this Court has allowed law enforcement to deviate from a verbatim

reading of the statutory language of N.D.C.C. § 39-20-01(3)(a), we do require that the

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advisory communicate all substantive information of the statute. See Vigen, 2019 ND

134, ¶ 15, 927 N.W.2d 430; see also Korb v. N.D. Dep’t of Transp., 2018 ND 226, ¶

10, 918 N.W.2d 49 (finding that N.D.C.C. § 39-20-01(3)(a) provides the mandatory

language that must be included in the advisory). If all substantive information of the

statute is not communicated, a valid request for testing under the statute does not

occur. Without a valid request for testing, including a valid advisory, there can be no

refusal to submit to testing under N.D.C.C. § 39-20-01. See Gardner, 2012 ND 223,

¶ 8, 822 N.W.2d 55.

[¶13] In O’Connor, an officer provided an individual “with a partial implied consent

advisory which failed to inform him that refusal to take a chemical test ‘is a crime

punishable in the same manner as driving under the influence.’” O’Connor, 2016 ND

72, ¶ 3, 877 N.W.2d 312 (quoting N.D.C.C. § 39-20-01(3)(a)). We determined that

under the plain terms of N.D.C.C. § 39-20-01(3)(b), test results obtained following

an incomplete advisory were inadmissible in a criminal proceeding for driving under

the influence. Id. The Court also discussed the inadmissibility of voluntary test results

where a proper implied consent agreement is not read. Id. at ¶ 12. The plain language

of N.D.C.C. § 39-20-01(3)(a) requires a valid request for testing before any next steps

can occur, whether that be an individual consenting to or refusing chemical testing. 

[¶14] Here, there is no dispute that the deputy read Alvarado an incomplete implied

consent advisory. Like in O’Connor, the deputy in this case failed to inform Alvarado

that refusal to take a chemical test is a crime punishable in the same manner as driving

under the influence. The only difference is that Alvarado refused to take the test,

where O’Connor consented. See O’Connor, 2016 ND 72, ¶ 18, 877 N.W.2d 312

(VandeWalle, C.J., concurring specially) (“I understand that had the person refused

to take the test and been convicted and punished in the same manner as driving under

the influence, the person could very well have been disadvantaged by the advisory in

this instance.”) While the O’Connor decision was based primarily upon the exclusion

remedy in N.D.C.C. § 39-20-01(3)(b), the lack of an equivalent statute addressing

refusal does not preclude relief. Instead, relief is granted not by excluding test results,

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but from recognizing that for a refusal of a chemical test to be valid, it must be

preceded by a valid request. See Gardner, 2012 ND 223, ¶ 8, 822 N.W.2d 55.

[¶15] The Department contends that Alvarado only needed to be informed of the

consequences of the administrative proceeding in order for his refusal to be valid and

that the legislature specifically did not provide a remedy for an individual who

refuses. This assertion contradicts the plain meaning of N.D.C.C. § 39-20-01(3)(a).

Furthermore, one of the purposes of the implied consent advisory is to encourage

individuals to take the chemical tests and being informed of potential criminal

sanctions may persuade some individuals that would otherwise refuse testing. Only

providing the part of the advisory related to administrative penalties ignores the

legislature’s intent to encourage testing. The legislature created specific warnings that

must be read in order for the implied consent advisory to be valid. Neither the

Department nor law enforcement have the authority to decide what type of penalties,

whether criminal or administrative, an individual may receive based on what part of

the advisory an officer chooses to read. 

[¶16] Gerald W. VandeWalle, C.J.

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