Filed 12/6/18 by Clerk of Supreme Court

IN THE SUPREME COURT

STATE OF NORTH DAKOTA

2018 ND 255

Dustin Alan LeClair, Appellee

v.

Thomas Sorel, Director, Department of Transportation, Appellant

No. 20180155

Appeal from the District Court of Cass County, East Central Judicial District,

the Honorable Wade L. Webb, Judge.

REVERSED.

Opinion of the Court by Tufte, Justice.

Lee M. Grossman, Fargo, N.D., for appellee.

Douglas B. Anderson, Assistant Attorney General, Bismarck, N.D., for

appellant.
LeClair v. Sorel

No. 20180155

Tufte, Justice.

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

judgment reversing the Department’s decision to suspend Dustin Alan LeClair’s

driving privileges. The Department argues the district court erred in reversing its

decision to suspend LeClair’s license because the officer’s recitation of the implied

consent advisory, which excluded the word “punishable,” substantially complied with

N.D.C.C. § 39-20-01(3)(a). We reverse the district court’s judgment and reinstate the

Department’s decision to suspend LeClair’s driving privileges.

I

[¶2] On November 27, 2017, a West Fargo police officer made contact with LeClair

after seeing a car being driven with “extremely bright lights.” The officer observed

LeClair had bloodshot eyes and slurred speech, and a strong odor of alcohol was

coming from the vehicle. The officer administered field sobriety tests, which indicated

LeClair was impaired. LeClair consented to an onsite screening test that revealed a

blood alcohol level above the legal limit.

[¶3] LeClair was arrested for driving under the influence and taken to the Cass

County jail. At the jail the officer read an incomplete implied consent advisory to

LeClair before administering an Intoxilyzer chemical breath test. The officer advised

that refusal to submit to a chemical breath test was “a crime in the same manner as

driving under the influence.” The officer’s advisory failed to include the word

“punishable” as written in N.D.C.C. § 39-20-01(3)(a) (“a crime punishable in the

same manner as driving under the influence”).

[¶4] At the administrative hearing LeClair objected to admission of the Intoxilyzer

test results, arguing the implied consent advisory was incomplete. The hearing officer

overruled the objection and suspended LeClair’s driving privileges for two years.

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LeClair appealed the decision to the district court, which reversed the Department’s

decision and reinstated LeClair’s driving privileges.

II

[¶5] The Administrative Practices Act governs the review of a decision to suspend

driving privileges. We must affirm an agency’s decision unless:

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.

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.

[¶6] Great deference is afforded to the agency’s factual determinations:

We determine only whether a reasoning mind reasonably could have

determined that the factual conclusions reached were proved by the

weight of the evidence from the entire record. A hearing officer’s

evidentiary rulings are reviewed under the abuse of discretion standard.

A hearing officer abuses her discretion when she acts in an arbitrary,

unreasonable, or capricious manner or misapplies or misinterprets the

law. Questions of law are fully reviewable.

Filkowski v. Director, North Dakota Dep’t of Transp., 2015 ND 104, ¶ 6, 862 N.W.2d

785 (internal quotations and citations omitted).

III

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[¶7] The Department argues LeClair’s Intoxilyzer test results are admissible under

N.D.C.C. § 39-20-01(3)(b) because the implied consent advisory read by the officer

substantially complied with the advisory in N.D.C.C. § 39-20-01(3)(a). We conclude

the advisory given to LeClair was substantively complete and in compliance with the

statutory requirement; thus, the test results were admissible.

[¶8] An arresting officer may request an individual to submit to chemical testing to

determine alcohol concentration via blood, breath, or urine. Under N.D.C.C.

§ 39-20-01(3)(b), a breath test is not admissible in an administrative proceeding if

the arresting officer fails to inform the individual as required under N.D.C.C.

§ 39-20-01(3)(a). Under N.D.C.C. § 39-20-01(3)(a):

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.)

[¶9] The implied consent statute directs that specific information must be

communicated by law enforcement to an individual arrested for driving under the

influence. N.D.C.C. § 39-20-01(3)(a); State v. O’Connor, 2016 ND 72, ¶¶ 8, 11, 877

N.W.2d 312. See also O’Connor, at ¶ 18 (VandeWalle, C.J., concurring specially)

(“the Legislature has established a bright line and the statutes leave no room for this

Court to engage in a determination of legislative intent or whether or not a person was

disadvantaged by an incorrect or incomplete advisory”). Unless all substantive

information in N.D.C.C. § 39-20-01(3)(a) is communicated to the driver, chemical test

results are not admissible. N.D.C.C. § 39-20-01(3)(b). The consequence of an

officer’s failure to convey the required information is exclusion of the test results. Id.;

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O’Connor, at ¶ 14; State v. Bohe, 2018 ND 216, ¶ 16, 917 N.W.2d 497; Schoon v.

North Dakota Dep’t of Transp., 2018 ND 210, ¶ 19, 917 N.W.2d 199.

[¶10] Here, the Department argues the officer’s advisory complied with N.D.C.C.

§ 39-20-01(3)(a) despite his omission of the word “punishable.” We agree and

conclude that the advisory given here was substantively complete and that “refusal to

take a breath or urine test is a crime [] in the same manner as driving under the

influence” satisfies the statutory command that the “individual charged” (the driver)

has been “inform[ed]” as required by N.D.C.C. § 39-20-01(3)(a).

[¶11] We have never held that § 39-20-01(3)(a) must be read word-for-word—only

that the substance must be conveyed in a way “reasonably calculated to be

comprehensible to the driver.” State v. Ayala, 2017 ND 126, ¶¶ 8-9, 894 N.W.2d 865

(recognizing that reading the advisory ordinarily will be sufficient). Although the

preferred approach is to use the language of subdivision 3(a), it is only for substantive

omissions that we have concluded an advisory was deficient. O’Connor, 2016 ND 72,

¶ 3, 877 N.W.2d 312 (holding insufficient an advisory lacking “is a crime punishable

in the same manner as driving under the influence”); Bohe, 2018 ND 216, ¶ 7, 917

N.W.2d 497 (holding insufficient an advisory omitting a warning that refusal is a

crime punishable in the same manner as DUI); Schoon, 2018 ND 210, ¶ 4, 917

N.W.2d 199 (same).

[¶12] The parties agree that omission of an “a,” “an,” or “the” would not result in

an insufficient advisory. Similarly, omission of the word “punishable” must be

considered with respect to whether there is a loss of information conveyed. Because

the relevant inquiry is an advisory’s substantive completeness and not recitation of

the precise statutory words, we must determine whether omission of the word

“punishable” changed the substantive meaning of the advisory given to LeClair. A

“crime” is “[a]n act that the law makes punishable.” Black’s Law Dictionary 451

(10th ed. 2014). “[P]unishable” means “subject to a punishment” (persons) or “giving

rise to a specified punishment” (crimes or torts). Id. at 1428. A “punishment” is “[a]

sanction—such as a fine, penalty, confinement, or loss of property, right or

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privilege—assessed against a person who has violated the law.” Id. Because all crimes

are by definition punishable, it is necessarily the case that a “crime . . . in the same

manner as driving under the influence” is a crime punishable in the same manner as

driving under the influence.

[¶13] A driver who is told that “refusal is a crime in the same manner as driving

under the influence” is informed that “refusal is a crime.” It is a necessary

presumption of the advisory scheme that a driver understands each word in the

statutory advisory, including what it means for something to be a crime. If something

is a crime, punishment may follow. A “crime in the same manner” as driving under

the influence informs the driver that the crime of refusal is like, or shares significant

characteristics of, the crime of driving under the influence. Because the potential for

punishment is the core of the definition of what is a “crime,” the linking of the crimes

of refusal and driving under the influence with “in the same manner” tells the driver

that these crimes are alike, at least in this core aspect of punishment. That is in fact

an accurate description of the two statutory offenses; thus, even without the word

“punishable,” the advisory provides the driver with all information required by

subdivision 3(a). Omission of the word “punishable” is not fatal to the advisory so

long as the word “crime” is communicated to the driver. The wording used by the

officer here was substantively complete and reasonably calculated to convey the entire

substance of the advisory.

[¶14] The Legislature prescribed the advisory in terms of what the arresting officer

“shall inform the individual.” N.D.C.C. § 39-20-01(3)(a). Despite the omitted word,

the officer conveyed the entire substance of the advisory. The substantively complete

advisory given to LeClair complied with the strict requirements of N.D.C.C. § 39-20-

01(3)(b), and the test result was admissible.

IV

[¶15] We reverse the district court’s judgment and reinstate the Department’s

decision to suspend LeClair’s driving privileges.

5
[¶16] Jerod E. Tufte

Lisa Fair McEvers

Jon J. Jensen

Jensen, Justice, concurring specially.

[¶17] I agree with the well-written majority opinion and I have signed that opinion. 

I write specially to note my agreement with the dissent’s observation that “the

advisory and the statutory exclusionary rule have proven problematic . . . .” Crothers,

J., dissenting at ¶ 30. I join in the dissent’s call for modification of the law.

[¶18] Jon J. Jensen

Crothers, Justice, dissenting.

[¶19] I respectfully dissent.

[¶20] The officer’s implied consent advisory excluded the word “punishable.” The

majority excuses that omission by allowing “substantial compliance” with N.D.C.C.

§ 39-20-01(3)(a). I believe that approach is ill-advised because it begins the erasure

of our heretofore bright line reliance on the advisory language in N.D.C.C.

§ 39-20-01(3)(a). Erasure of the bright line will place future district courts in the

position of guessing which omission might have been meaningful to a particular

driver, and guessing what any majority of this Court might think is “substantial

compliance” with the mandatory advisory.

[¶21] The Department argues and the majority agrees LeClair’s Intoxilyzer test

results are not subject to exclusion under N.D.C.C. § 39-20-01(3)(b) because the

officer’s implied consent advisory substantially complied with the advisory in

N.D.C.C. § 39-20-01(3)(a). Majority opinion, at ¶ 1. I would conclude the advisory

did not comply with the statutory requirement; thus the test results are not admissible.

[¶22] An arresting officer may request an individual to submit to chemical testing

to determine the operator’s blood-alcohol concentration. Under N.D.C.C.

§ 39-20-01(3)(b), a breath test is not admissible in a criminal or an administrative

proceeding if the arresting officer fails to inform the individual as required under

N.D.C.C. § 39-20-01(3)(a).

6
[¶23] The implied consent statute requires that specific information be

communicated by law enforcement to an individual arrested for driving under the

influence. N.D.C.C. § 39-20-01(3)(a); State v. O’Connor, 2016 ND 72, ¶¶ 8, 11, 877

N.W.2d 312. See also O’Connor, at ¶ 18 (VandeWalle, C.J., specially concurring)

(“the Legislature has established a bright line and the statutes leave no room for this

Court to engage in a determination of legislative intent or whether or not a person was

disadvantaged by an incorrect or incomplete advisory.”). The legislature has directed

that exclusion of the test results is the consequence for an officer’s failure to convey

the required information. N.D.C.C. § 39-20-01(3)(b); O’Connor, at ¶ 14; State v.

Bohe, 2018 ND 216, ¶ 16, 917 N.W.2d 497; Schoon v. N.D. Dep’t of Transp.,

2018 ND 210, ¶ 19, 917 N.W.2d 199.

[¶24] Here the majority holds only substantial compliance with N.D.C.C.

§ 39-20-01(3)(a) is required, and giving a “substantively complete” advisory is

permissible for admission of the chemical test results. Majority opinion, at ¶ 13. By

doing so the majority effectively holds the word “punishable” is surplusage, and

suggests other words also can be excluded so long as the law enforcement officer

speaks the essence of the legislature’s intent.1

 I disagree for a number of reasons.

[¶25] First, we presume the legislature meant what it said and said what it meant.

“As previously noted, however, this Court must presume the legislature

meant what it said and said all it intended to say. We must further

presume that the legislature made no mistake in expressing its purpose

and intent. ‘Consequently, we will not correct an alleged legislative

“oversight” by rewriting unambiguous statutes to cover the situation at

hand.’ N.D.C.C. § 1-02-05 (‘When the wording of a statute is clear and

free of all ambiguity, the letter of it is not to be disregarded under the

pretext of pursuing its spirit.’). This Court is not free to ‘amend’ or

‘clarify’ the clear language of the statute, and ‘if changes are to be

made in the statute, we leave that matter to the legislature, as “it is for

the legislature to determine policy, not for the courts.”’”

1

I agree the omission of an article likely would not render the advisory invalid. 

See majority opinion, at ¶ 12. I am unwilling to agree the omission of an “a,” “an,”

or “the” would never render an advisory invalid.

7
Estate of Christeson v. Gilstad, 2013 ND 50, ¶ 14, 829 N.W.2d 453 (internal citations

omitted). By picking and choosing which words of the advisory are close enough to

those in the statute we are deviating from this rule and instead are pursuing the

legislature’s intent at the expense of the words it used.

[¶26] Second, the word “punishable” is a meaningful and substantive part of the

implied consent advisory. The sentence of the statute as edited by the majority says

refusal of the chemical test “is a crime in the same manner as driving under the

influence.” Majority opinion, at ¶ 13. Maybe it only matters to lawyers and judges,

but the majority’s statement is not accurate. Refusal to submit to chemical testing is

not driving under the influence. A review of the 2013 legislative history for these

provisions shows why that is true. In 2013 the legislature attempted to remove an

incentive for an operator to avoid a driving under the influence charge by refusing

chemical testing. It did so by criminalizing refusal and making the punishment for

refusal the same as driving under the influence. 2013 N.D. Sess. Laws ch. 301, § 7. 

The legislature also mandated that the advisory be given. Id. at § 11. Because of this

background, the majority’s result might make sense if the officer omitted the word

“crime,” and advised that refusal and driving under the influence are subject to the

same punishment. But refusal to submit to chemical testing and driving under the

influence are different criminal acts.

[¶27] Third, because N.D.C.C. § 39-20-01(3) requires law enforcement to advise

individuals in a specific manner, courts are not free to permit the reading of an

incomplete implied consent advisory. See O’Connor, 2016 ND 72, 877 N.W.2d 312;

Bohe, 2018 ND 216, 917 N.W.2d 497; and Schoon, 2018 ND 210, 917 N.W.2d 199. 

Cf. Korb v. North Dakota Dep’t of Transp., 2018 ND 226, ¶ 12, 918 N.W.2d 49

(Information read to an arrested driver in addition to the statutory advisory “must not

materially mislead or coerce the driver. If the additional language provided by the

officer is accurate, its presence does not alter the sufficiency of a complete, accurate

implied consent advisory under N.D.C.C. § 39-20-01(3).”).

8
[¶28] In Schoon this Court answered how the statutory advisory language must be

read:

“As we explained in State v. O’Connor, 2016 ND 72, 877 N.W.2d 312,

this provision sets out clear and specific instructions for exactly what

information must be communicated to a driver who is arrested

for driving under the influence. Subdivision (b) strictly requires

communicating all the information required by subdivision (a) before

a test result is admissible. O’Connor, at ¶¶ 8, 11 (applying same version

of § 39-20-01(3) at issue here). Considering only the statute as

explained by O’Connor, the advisory was incomplete and thus

inadmissible under subdivision (b).”

Schoon v. N.D. Dep’t of Transp., 2018 ND 210, ¶ 12, 917 N.W.2d 199.

[¶29] In O’Connor this Court stated:

“The Legislature has directed that a specific warning be provided to an

arrested defendant before the results of a chemical test can be admitted

in a criminal or administrative proceeding. ‘We give special deference

to the Legislature when a[n implied consent] statute governing

admissibility of evidence is part of a legislative design that essentially

authorizes and creates the item of disputed evidence.’ (Internal citations

omitted.) Adopting the State’s arguments here would eviscerate the

2015 amendment to N.D.C.C. § 39-20-01(3).”

State v. O’Connor, 2016 ND 72, ¶ 13, 877 N.W.2d 312. In O’Connor we also

explained how and why the O’Connor and Schoon holdings differed from our earlier

holding in State v. Salter:

“When Salter was decided, N.D.C.C. §§ 39-20-01 and 39-20-14 (2007)

required identical implied consent advisories be given before

submission to the screening test and the chemical test. Neither statute

stated any consequence for an officer’s failure to strictly comply with

those requirements. Under the reasoning of Salter, the consequence for

an officer’s failure to comply with the statutory procedures required the

district court to determine whether the defendant voluntarily gave

‘actual consent’ for the chemical test under the Fourth Amendment.

2008 ND 230, ¶¶ 6, 7, 10, 758 N.W.2d 702. The statute has changed

since Salter was decided. In 2013 the Legislature made refusal to take

either a screening test or a chemical test a crime, see, e.g., State v.

Smith, 2014 ND152, ¶ 9, 849 N.W.2d 599, and in 2015 the Legislature

attached specific consequences to an officer’s failure to give the

advisory after the defendant’s arrest and before submitting to a

chemical test. See 2015 N.D. Sess. Laws ch. 268, § 9. Although two

9
advisories have been required under the implied consent laws, the

Legislature now has dictated that the test ‘is not admissible in any

criminal or administrative proceeding’ if the officer fails to inform the

‘individual charged’ of the implied consent advisory before a chemical

test. N.D.C.C. § 39-20-01(3)(b).”

Id. at ¶ 11.

[¶30] Under the law applicable to this case, the legislature requires the advisory, and

requires suppression of chemical test results if law enforcement fails to give the

required advisory. See N.D.C.C. § 39-20-01(3)(a) and (b). Both the advisory and the

statutory exclusionary rule have proven problematic, and I have advocated for

modification of the law. See Schoon, at ¶ 35 (Crothers, J., specially concurring). 

Unless and until the statutory advisory or exclusionary requirement is repealed, the

courts should follow the directives in N.D.C.C. § 39-20-01(3). I dissent from the

majority opinion, which I believe fails to do so.

[¶31] Daniel J. Crothers

VandeWalle, Chief Justice, dissenting.

[¶32] I join in Justice Crothers’ dissent with the exception of its reliance on State v.

Bohe, 2018 ND 216, 917 N.W.2d 497 and Schoon v. N.D. Dep’t of Transp., 2018 ND

210, 917 N.W.2d 199.

[¶33] Gerald W. VandeWalle, C.J.

10