SANDSTROM, Justice.
[¶ 1] The Department of Transportation appeals from a district court judgment reversing the decision of a hearing officer to suspend the driving privileges of Scott Fossum. As this Court held in City of Bismarck v. Hoffner, 379 N.W.2d 797 (N.D.1985), and State v. Abrahamson, 328 N.W.2d 213 (N.D.1982), the implied-consent requirements of N.D.C.C. § 39-20-01 do not apply when an individual voluntarily consents to a chemical test. We therefore reverse the judgment and reinstate the hearing officer's decision to suspend Fossum's driving privileges.
[¶ 2] On January 12, 2013, Bismarck Police Officer Colt Bohn issued a report and notice form to Fossum. On the form, Officer Bohn stated he stopped Fossum's vehicle for speeding but ended up arresting Fossum because an odor of alcoholic beverages emanated from the vehicle and Fossum failed field sobriety and screening tests. Officer Bohn certified he issued Fossum a temporary operator's permit at that time. Fossum was twenty years old at the time of arrest, and he requested an administrative hearing before a hearing officer of the Department.
[¶ 3] At the hearing, Officer Bohn testified that after stopping Fossum and noting the odor of alcohol emanating from within the vehicle, he asked Fossum whether he had had anything to drink. He testified Fossum initially said no, but when asked a second time, Fossum indicated he had been drinking. Officer Bohn testified he asked Fossum to get out of the vehicle and walk back to his patrol car. He testified that once back at his patrol car, he performed a Horizontal Gaze Nystagmus ("HGN") test upon Fossum. Officer Bohn testified that after receiving four of six clues from the HGN test and deeming the test to be a fail, he read Fossum the "North Dakota Implied Consent" advisory and asked whether he would be willing to submit to a field breath test called an S-D5, to which Fossum agreed. Officer Bohn testified he received a "breath alcohol content" of .079 and placed Fossum under arrest for DUI, minor zero tolerance. Officer Bohn testified that he used the words "minor zero tolerance" when he arrested Fossum and that minor zero tolerance is a DUI arrest of a person under the age of 21 with a blood alcohol content under .08. Officer Bohn testified Fossum "was read the North Dakota Implied Consent a second time," and he asked Fossum if he would be willing to take an Intoxilyzer test at the police station. He testified Fossum consented to taking the Intoxilyzer test. Officer Bohn testified the Intoxilyzer testing was completed within two hours of the time he saw Fossum driving and "[a]t 0224 hours, a breath result of.085 percent" was found.
[¶ 4] The hearing officer found:
[¶ 5] The hearing officer relied on the result of the Intoxilyzer test and suspended Fossum's license for 91 days. Fossum petitioned for reconsideration, but the hearing officer denied the petition. Fossum appealed the decision to the district court, alleging violation of basic and mandatory requirements of N.D.C.C. § 39-08-01.
[¶ 6] On appeal, the district court reversed, concluding the results of the Intoxilyzer test should not have been considered. The district court stated, "Even though [the hearing officer] found that `the evidence presented did not establish that Officer Bohn also arrested Mr. Fossum for a violation of NDCC 39-08-01 [DUI statute] or equivalent ordinance,' she considered the results of the Intoxilyzer test, which showed Fossum's blood alcohol concentration exceeded the .02% for a person under twenty-one...." The district court held the hearing officer's findings of fact and conclusions of law contradicted the evidence presented to her and contradicted N.D.C.C. § 39-20-01, which provided at the time of Fossum's arrest: "The test ... must be administered at the direction of a law enforcement officer only after placing the person ... under arrest and informing that person that the person is or will be charged with the offense of driving ... while under the influence of intoxicating liquor...." The court concluded that the results of Fossum's Intoxilyzer test should not have been considered and that without this evidence, the hearing officer would have been unable to find Fossum's blood concentration exceeded .02 percent. The court entered judgment reversing the hearing officer and reinstating Fossum's driving privileges.
[¶ 7] Fossum properly requested an administrative hearing under N.D.C.C. § 39-20-05. The hearing officer had jurisdiction under N.D.C.C. § 39-20-05. Fossum's notice of appeal from the Department's decision to the district court was timely under N.D.C.C. § 28-32-42(1). See DuPaul v. N.D. Department of Transportation, 2003 ND 201, ¶ 6, 672 N.W.2d 680 (motorist may challenge administrative ruling under either N.D.C.C. § 39-20-06 or under N.D.C.C. § 28-32-42(1) if a petition for reconsideration has been filed under N.D.C.C. § 28-32-40(1) and been denied). The district court had jurisdiction under N.D. Const. art. VI, § 8, and N.D.C.C. § 28-32-42. Fossum filed a timely notice of appeal from the district court judgment under N.D.C.C. § 28-32-49. This Court has jurisdiction under N.D. Const. art. VI, §§ 2 and 6, and N.D.C.C. § 28-32-49.
[¶ 8] The Department argues the hearing officer's decision to suspend Fossum's driving privileges should be reinstated because he submitted to the chemical test.
[¶ 9] Our deferential standard of review for administrative proceedings is well-established:
Schock v. N.D. Department of Transportation, 2012 ND 77, ¶ 11, 815 N.W.2d 255. "[W]e do not make independent findings of fact or substitute our judgment for that of the agency. 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." Power Fuels, Inc. v. Elkin, 283 N.W.2d 214, 220 (N.D.1979).
[¶ 10] The district court reversed the hearing officer, concluding her findings of fact and conclusions of law contradicted the evidence presented to her and contradicted the statutory language of N.D.C.C. § 39-20-01. Section 39-20-01, N.D.C.C., at the time of Fossum's encounter with Officer Bohn, provided:
[¶ 11] In City of Bismarck v. Hoffner, 379 N.W.2d 797, 798-99 (N.D. 1985), this Court interpreted N.D.C.C. § 39-20-01 as not applying in cases where an individual voluntarily consents to chemical testing:
(Emphasis added.)
[¶ 12] As Hoffner and Abrahamson have recognized, the purpose of the implied-consent law is to have a procedure in place when someone says no; N.D.C.C. § 39-20-01 does not apply when the driver consents to testing.
[¶ 13] The question then becomes whether Fossum voluntarily consented to chemical testing. With regard to voluntary consent to take a chemical test, this Court has stated:
State v. Anderson, 336 N.W.2d 634, 639 (N.D.1983).
[¶ 14] In this case, the hearing officer found the "[r]esults were .079 on the S-D5 on-site screening test, but the evidence presented was unclear with regard to whether the S-D5 test was done before or after Mr. Fossum was formally detained under the zero tolerance law; the S-D5 results will therefore not be considered here." Although we have concluded N.D.C.C. § 39-20-01 does not apply when voluntary consent is given, the hearing officer said the time of Fossum's arrest was a potential issue for admission of the S-D5 field test in the administrative hearing and declined to consider it.
[¶ 15] Section 39-20-14, N.D.C.C., explains the application of North Dakota's implied-consent law prior to arrest and application of N.D.C.C. § 39-20-01:
[¶ 16] This Court has explained the role of the N.D.C.C. § 39-20-14 on-site screening test:
Asbridge v. N.D. State Highway Commissioner, 291 N.W.2d 739, 745 (N.D. 1980) (emphasis added).
[¶ 17] Officer Bohn stated that he stopped Fossum's vehicle for speeding but that he ended up arresting Fossum because an odor of alcoholic beverages emanated from the vehicle. Officer Bohn testified that after receiving four of six clues from the HGN test and deeming the test to be a fail, he read Fossum the implied-consent advisory and asked whether he would be willing to submit to an S-D5 field breath test, to which Fossum agreed. Officer Bohn testified the result of the S-D5 was an alcohol concentration of .079.
[¶ 18] The results of the S-D5 administered under N.D.C.C. § 39-20-14 are admissible only "for determining whether or not a further test shall be given under the provisions of section 39-20-01." N.D.C.C. § 39-20-14(3). In this case, Fossum submitted to the S-D5 field test, and an Intoxilyzer test was subsequently administered.
[¶ 19] An officer who has witnessed a moving violation and smells alcohol on the driver's breath may require the driver to
[¶ 20] Officer Bohn testified that after placing Fossum under arrest, reading the implied-consent advisory a second time, and asking Fossum whether he would be willing to take an Intoxilyzer test at the police station, Fossum consented to taking the Intoxilyzer test. The hearing officer found, "Scott Fossum consented to breath testing to determine his alcohol concentration. Intoxilyzer testing was done in accordance with the state toxicologist's approved method, with results showing an alcohol concentration of .08% within two hours of the time Mr. Fossum was driving."
[¶ 21] Under the facts of this case, the timing of the S-D5 test was irrelevant. The evidence provided by the Intoxilyzer test was sufficient for the hearing officer to have found Fossum was driving with an alcohol concentration of ".08% within two hours of the time Mr. Fossum was driving."
[¶ 22] The conclusions of law and order of the hearing officer are supported by the findings of fact, and the order is in accordance with the law. We reverse the judgment of the district court and reinstate the hearing officer's decision suspending Fossum's driving privileges.
[¶ 23] DANIEL J. CROTHERS, J., concurs.
KAPSNER, Justice, concurring in the result.
[¶ 24] I concur in the result reached by the majority opinion. The issues raised at the administrative hearing were:
[¶ 25] The specification of error raised by Fossum at the district court was:
[¶ 26] The district court's decision was that there was a failure of strict statutory compliance resulting in an evidentiary failure:
[¶ 27] The issue raised on appeal by the Department was:
[¶ 28] Now, this Court decides the case on the basis of consent, an issue neither raised nor fully briefed to this Court. That seems to me to be neither necessary nor helpful in addressing what will remain an unanswered question under Chapter 39-20, N.D.C.C. I concur in the result reached by the majority, but I do so not because Fossum consented to the test, but because the facts of this case, under the applicable statutes, dictate the result. I believe the answer to the specific question raised on appeal by the Department should be answered, and the answer under the facts of this case is "No."
[¶ 29] The officer stopped Fossum for speeding. Fossum "had an odor of an alcoholic beverage and admitted drinking." Fossum's driver's license established that he was under 21 years of age, and his failure of the horizontal gaze nystagmus test indicated he was driving under the influence of intoxicating liquor. The officer at that point had probable cause to believe that he had observed a zero tolerance violation. The officer testified that he told Fossum he was being arrested and detained for "minor zero tolerance." Fossum testified, "He said minor and he kind of mumbled it, kind of." The Department argues that by informing Fossum he was being detained under the "minor zero tolerance" law, Fossum was adequately informed under N.D.C.C. § 39-20-01 (2011) for purposes of administering the Intoxilyzer test under Asbridge v. N.D. State Highway Comm'r, 291 N.W.2d 739, 747 (N.D.1980) (holding driver was provided with reasonable notice for the cause of his arrest under similar circumstances). I agree.
[¶ 30] Under N.D.C.C. § 39-20-04.1(1)(a) (2011), Fossum, under the age of 21, was subject to the administrative loss of his license for 91 days if driving with an alcohol concentration of at least two one-hundredths of one percent by weight. The officer conveyed to the driver that he was being "arrested" for "minor zero tolerance." Although the statute requires notice to the driver of the reason for detention, it would be an absurd application of the law to require notice of something other than the reason for detention.
[¶ 32] Section 39-20-01, N.D.C.C. (2011), requires "informing that individual that the individual is or will be charged with the offense of driving or being in actual physical control ... while under the influence of intoxicating liquor...." The words in the statute that cause the problem are "charged with the offense." The zero tolerance law is not a criminal offense. But interpreted as the district court did, the statute appears to require a detaining officer to advise a person under 21 years old that he or she will be arrested under a charge for which the person can be criminally prosecuted even when the officer believes there is a zero tolerance violation and not a criminal violation. Under this interpretation, the failure to give this warning would mean the officer could not conduct a blood alcohol test for either criminal or "zero tolerance" purposes. If this construction of the statute is correct, for both criminal and zero tolerance purposes, then the district court was correct, and this Court ought to affirm the district court.
[¶ 33] Statutes are strictly construed to favor criminal defendants. State v. Higgins, 2004 ND 115, ¶ 13, 680 N.W.2d 645. This is not a criminal action, but an administrative proceeding. Giving N.D.C.C. § 39-20-01 the construction applied by the district court means that unless an officer incorrectly advises a driver under 21 years old that the officer intends to charge the driver with a crime, the officer cannot collect the evidence needed to establish a zero tolerance violation. Such a result is contrary to the manifest intent of the zero tolerance statute. We construe statutes to avoid absurd or illogical results that are clearly contrary to statutory intent. Koenig v. N.D. Dep't of Transp., 2005 ND 95, ¶¶ 15, 16, 696 N.W.2d 534.
[¶ 34] I agree with the Department's position that section 39-20-01 requires informing the driver of a violation of the law involving driving and the use of drugs or alcohol and that Fossum was adequately informed that his violation was "minor zero tolerance." Under our precedent in Asbridge, this was enough to put a reasonable person on notice as to the cause of the detention. Although cryptic, "minor zero tolerance" does describe the driving violation for which Fossum was subject to license suspension because of his blood alcohol content. N.D.C.C. § 39-20-04.1. This advisement was sufficient under N.D.C.C. § 39-20-01, and it was accurate.
[¶ 35] The statute governing the hearing of this matter also makes it clear that the arrest of an individual under the age of 21 years is not an issue:
N.D.C.C. § 39-20-05(2) (2011) (emphasis added).
[¶ 36] I concur in the result.
[¶ 37] CAROL RONNING KAPSNER.
VANDE WALLE, Chief Justice, concurring specially.
[¶ 38] I concur in the majority opinion. Under our prior case law, cited in the majority opinion, I agree that Fossum voluntarily agreed to take the chemical test.
[¶ 39] However, I also agree with Justice Kapsner's special concurrence in which she concludes that the advisement given by the officer was sufficient under N.D.C.C. § 39-20-01 and it was accurate.
[¶ 40] GERALD W. VANDE WALLE, C.J.
