author: MILLER, Chief Justice SABERS, Justice AMUNDSON, Justice

text:
    2000 SD 135
    STATE of South Dakota, Plaintiff and Appellee, v. Adam Paul RINEHART, Defendant and Appellant.
    No. 20967.
    Supreme Court of South Dakota.
    Considered on Briefs Oct. 21, 1999.
    Decided Oct. 18, 2000.

      Mark Barnett, Attorney General, Michele K. Bennett, Assistant Attorney General, Pierre, for plaintiff and appellee.
    Timothy W. Bjorkman and Mike C. Fink of Bjorkman Law Offices, Bridgewater, for defendant and appellant.
   MILLER, Chief Justice

[¶ 1.] Following a court trial, Adam Paul Rinehart was found guilty of DUI and third offense DUI. We affirm.

FACTS

[¶ 2.] At 1:05 a.m. on July 3, 1998, Officer DeBoer saw Rinehart driving south on Sertoma Avenue near its intersection with 26th Street in southwest Sioux Falls, South Dakota. The posted speed limit was 40 miles per hour.

[¶ 3.] DeBoer followed Rinehart’s car and paced its speed for six blocks. He estimated that Rinehart’s speed was between 20 and 25 miles per hour. DeBoer did not observe any traffic violations.

[¶ 4.] DeBoer activated his red lights and stopped Rinehart’s vehicle. The slow speed of Rinehart’s vehicle raised concerns for DeBoer that the driver might have a medical problem such as a stroke. “My whole intention,” DeBoer testified, “was to stop him and see if he was all right.” Of secondary concern was the fact that in DeBoer’s experience, driving under the speed limit “could” be an indicator of a possible drunk driver.

[¶ 5.] When DeBoer approached Rine-hart he detected the odor of alcohol and noted his bloodshot, watery eyes. Following field sobriety tests, DeBoer arrested Rinehart for driving under the influence, a violation of SDCL 32-23-1.

ISSUE

[¶ 6.] Did the trial court err when it denied Rinehart’s motion to suppress the evidence obtained following the stop of Rinehart’s vehicle?

[¶ 7.] In Cady v. Dombrowski, 413 U.S. 433, 441, 93 S.Ct. 2523, 2528, 37 L.Ed.2d 706, 715 (1973) the United States Supreme Court observed that local police officers “frequently investigate vehicle accidents in which there is no claim of criminal liability and engage in what, for want of a better term, may be described as community caretaking functions, totally divorced from the detection, investigation, or acquisition of evidence relating to the violation of a criminal statute.” Consequently “[ujnder appropriate circumstances a law enforcement officer may be justified in stopping a vehicle to provide assistance, without needing any reasonable basis to suspect criminal activity.” State v. Brown, 509 N.W.2d 69, 71 (N.D.1993). If a police officer has a demonstrable reason to believe that a driver may be unfit to drive for medical or other reasons, a temporary stop is justified for the limited purpose of investigating the person’s well-being. McDonald v. State, 759 S.W.2d 784, 785 (Tex. App.-Fort Worth 1988).

[¶ 8.] In this case the trial court did not err in denying Rinehart’s suppression motion. Before stopping Rinehart, De-Boer observed his excessively slow speed at 1:09 a.m. which raised, in his experience and knowledge, concerns over the driver’s medical condition. As the court in State v. Garbin, 325 N.J.Super. 521, 739 A.2d 1016, 1019 (N.J.Super.A.D.1999) noted:

A police officer’s observation of a person operating a motor vehicle in a manner that indicates something may be wrong with the vehicle or its driver is one recognized circumstance in which the police may take appropriate action in the performance of their community care-taking responsibilities. For example, in State v. Martinez, 260 N.J.Super. 75, 78, 615 A.2d 279 (App.Div.1992) we stated that a police officer’s observations of a motor vehicle being driven at less than 10 m.p.h. “suggest[ed] a number of objectively reasonable concerns,” including that “something might be wrong with the car ... [or] its driver.” Consequently, we held that these concerns justified “the minimal intrusion involved in a simple inquiry stop.” Id. Similarly, in State v. Goetaski, 209 N.J.Super. 362, 507 A.2d 751 (App.Div.1986), we upheld the validity under the community care-taking doctrine of a stop of a person who was driving slowly on the shoulder of a state highway with his left turn directional signal flashing. We concluded that observations of such unusual operation of a vehicle provided a reasonable basis for the police officer to believe that there was something wrong with the vehicle or its driver. Id. at 366, 507 A.2d 751.

[¶ 9.] Here, Rinehart was traveling 20-25 miles per hour late at night on a deserted street with a posted speed limit of 40 miles per hour. There were no extraneous factors such as other traffic or adverse weather conditions attributing to his slow pace in any way. Under these circumstances, Officer DeBoer was justified in assuming that something else, such as a medical emergency or an automotive malfunction, may be occurring. In fact, he indicated that he was initially more concerned that Rinehart might have a possible medical problem, rather than having a suspicion that he might be intoxicated. De-Boer stated that his whole intention in stopping Rinehart was to see if he was all right.

[¶ 10.] We recognize that “[t]he ‘community caretaking’ exception should be cautiously and narrowly applied in order to minimize the risk that it will be abused or used as a pretext for conducting an investigatory search for criminal evidence.” Com. v. Waters, 20 Va.App. 285, 456 S.E.2d 527, 530 (1995). In this case, however, the trial court did not find fault with DeBoer’s motives and was able to judge the officer’s credibility as he testified. See Geraets v. Halter, 1999 SD 11, ¶ 18, 588 N.W.2d 231, 234 (stating “the trial court is in the best position to assess the credibility of witnesses, weigh the conflicting evidence and observe the witnesses and evidence first hand.”)

[¶ 11.] Based on the circumstances presented, DeBoer, as part of his role in community earetaking, was justified in stopping Rinehart to make sure everything was all right. Therefore, the trial court did not err in denying Rinehart’s motion to suppress.

[¶ 12.] The judgment is affirmed.

[¶ 13.] KONENKAMP, and GILBERTSON, Justices, concur.

[¶ 14.] SABERS and AMUNDSON, Justices, dissent.

SABERS, Justice

(dissenting).

[¶ 15.] Although officers may stop a vehicle while exercising their “community caretaking function,” the facts do not justify applying that concept here. See Cady v. Dombrowski, 413 U.S. 438, 441, 93 S.Ct. 2523, 2528, 37 L.Ed.2d 706, 714-15 (1973); see also State v, Catlette, 88 S.D. 406, 221 N.W.2d 25, 28 n. 3 (1974). An officer’s subjective explanation for stopping or detaining a driver does not control Fourth Amendment analysis. Courts are required to “make an objective assessment of the officer’s actions” when determining if a stop was reasonable. United States v. Cummins, 920 F.2d 498, 501 (8th Cir.1990) (citing Scott v. United States, 436 U.S. 128, 136, 98 S.Ct. 1717, 1723, 56 L.Ed.2d 168, 177 (1978)).

[¶ 16.] Applying the community caretak-ing exception to the facts of this case ignores the requirement of objective reasonableness when assessing an officer’s actions. Id. Officer DeBoer’s stated “primary justification” for stopping Rinehart, his health, is not sufficiently borne out in the record. DeBoer’s subjective motives, no matter how honestly held, do not affect Fourth Amendment protections. It is vital to recognize that “[t]he ‘community care-taking’ exception should be cautiously and narrowly applied to minimize the risk that it will be abused or used as pretext for conducting an investigatory search for criminal evidence.” Commonwealth v. Waters, 20 Va.App. 285, 456 S.E.2d 527, 530 (1995).

[¶ 17.] Given the absence of support in the record to justify the community care-taking exception, we must determine the validity of this stop under our traditional Fourth Amendment analysis. The purpose of the Fourth Amendment is “not to eliminate all contact between police and the citizenry, but ‘to prevent arbitrary and oppressive interference’ by enforcement officials with the privacy and personal security of individuals.” United States v. Mendenhall, 446 U.S. 544, 553-54, 100 S.Ct. 1870, 1877, 64 L.Ed.2d 497, 509 (1980). There must be a balancing of the intrusion on a person’s Fourth Amendment rights against legitimate governmental interests. Delaware v. Prouse, 440 U.S. 648, 654, 99 S.Ct. 1391, 1396, 59 L.Ed.2d 660, 667 (1979). To balance these interests, law enforcement must have a reasonable suspicion of a violation to make a brief traffic stop. Terry v. Ohio, 392 U.S. 1, 31-32, 88 S.Ct. 1868, 1888, 20 L.Ed.2d 889, 911 (1968); State v. Cuny, 534 N.W.2d 52, 53 (S.D.1995). An officer must support a stop with an articulable suspicion of a violation. State v. Herrboldt, 1999 SD 55, ¶ 7, 593 N.W.2d 805, 808. DeBoer’s stop of Rinehart’s vehicle is not supported by an articulable suspicion of a violation and was unjustified as a matter of law.

[¶ 18.] I also join Justice AMUNDSON’S dissent.

AMUNDSON, Justice

(dissenting).

[¶ 19.] The majority is now adopting a new exception to the Fourth Amendment — ’the community caretaking exception. Under the facts of this case, this exception should not be embraced. The majority relies on three cases: State v. Brown, 509 N.W.2d 69 (N.D.1993); State v. Garbin, 325 N.J.Super. 521, 739 A.2d 1016 (1999); and State v. Goetaski, 209 N.J.Super. 362, 507 A.2d 751 (1986), which are neither dispositive nor persuasive. In fact, in reviewing these cases, it becomes evident that they are clearly distinguishable.

[¶ 20.]'In Garbin police were dispatched to defendant’s residence because smoke was emanating from the defendant’s garage area. Believing there to be a fire, the police entered the garage to find defendant inside his car spinning the tires. Defendant was noticeably drunk and was arrested for DUI. The standard employed by the court in determining the applicability of. the community caretaking exception was whether the officer had a “reasonable basis for concern.” In Garbín, the officers were called to the scene, they personally observed smoke and could logically conclude a fire was present. These facts support a “reasonable basis for concern.” The court found that “[u]nder these circumstances, the police officers would have been remiss in the performance of then-community caretaking responsibilities if they had failed to investigate further.” Garbin, 739 A.2d at 1019. Thus, based on an objective standard the officers had a reasonable basis for concern.

[¶ 21.] In Goetaski, an officer observed a vehicle traveling at less than ten miles an hour on the shoulder of a public highway with its left-turn blinker on at 4 a.m. The officer followed the vehicle for one-tenth a mile before making a stop. While driving on the shoulder is not a violation of a statute, it is “designed for emergency use but not ordinarily to be used for vehicular travel.” NJSA 39:1-1. The Court found that based on these facts, the officer had a reasonable belief that something was out of the ordinary, and that “[p]eople don’t drive on the shoulder of the road, especially with their left turn signals on in the middle of the night in a rural area if there’s not something wrong.” Goetaski, 507 A.2d at 752. Thus, the officer had a “reasonable concern,” that the car had malfunctioned, for making the stop.

[f 22.] In Brown, the North Dakota Supreme Court addressed the community caretaker exception and found that it did not apply when the officer’s assertion of community caretaking was merely pretex-tual. The trial court discounted the officer’s testimony that he thought he had seen smoke coming from Brown’s vehicle and that Brown’s vehicle was traveling at a slow rate of speed. The North Dakota Supreme Court determined that the officer’s reason for pulling over the vehicle was to investigate a DUI and, therefore, traditional Fourth Amendment standards governed the stop. While the Brown court was willing to recognize the community caretaking exception, on the facts presented such an exception did not apply.

[¶ 23.] Garbín, Goetaski and Brown all reinforce the notion that an officer must investigate dangerous situations. As this Court recognizes, there are certain circumstances where an officer’s duties include acting outside the criminal investigation context. But this call to duty, nonetheless, does not diminish constitutional safeguards inalienable to all persons. Thus, it could be said that there must be an objective reasonable basis or “reasonable concern” by the officer before a stop is legally justified under the Fourth Amendment, regardless of the situation.

[¶24.] This Court has previously discussed Fourth Amendment rights for vehicle stops.

“The stop of an automobile and the detention of its occupants is a seizure within the meaning of the Fourth and Fourteenth Amendments. Spenner v. City of Sioux Falls, 1998 SD 56, ¶ 13, 580 N.W.2d 606, 610 (citing Delaivare v. Prouse, 440 U.S. 648, 99 S.Ct. 1391, 59 L.Ed.2d 660 (1979)). Law enforcement “may not stop a vehicle without a reasonable suspicion for doing so. ” Id. (citing Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968)). “However, it should be emphasized that the reasonable suspicion required to make a stop is less than the probable cause required to issue a warrant or make an arrest.” Id. (citing State v. Lownes, 499 N.W.2d 896, 898 (1993)). “The existence of reasonable suspicion is a question of law which is fully reviewable by this Court.” Lownes, 499 N.W.2d at 898. [T]he factual basis required to support a stop for a “routine traffic check” is minimal.... All that is required is that the stop be not the product of mere whim, caprice, or idle curiosity. It is enough if the stop is based upon “specific and articulable facts which taken together with references from those facts, reasonably warrant [the] intrusion[.]”
Spenner, 1998 SD 56 at ¶ 14, 580 N.W.2d at 610-11 (alterations in original) (quoting State v. Krebs, 504 N.W.2d 580, 585 (S.D.1993)).

[¶ 25.] Turning our attention to the case at hand, Officer DeBoer stated that he was concerned that Rinehart may have been experiencing a stroke or that the vehicle had malfunctioned. Neither assumption is reasonable. If Rinehart was experiencing any type of physical- onset, the vehicle would not have remained within the lane in which Rinehart was driving. Some sort of erratic movements of the car would have been observed if Rinehart was under physical impairment. The record does not indicate such circumstances existed. Nor did the trial court rely on a violation of SDCL 32-25-5.1 a basis to stop Rinehart.

[¶ 26.] Likewise, Officer DeBoer had no objective reasonable belief that Rinehart’s car had malfunctioned. Smoke coming from the car was not observed; auto parts were not dropping from underneath the car; Rinehart did not have his flashers on indicating trouble nor was Rinehart flagging down the officer to request help. All Officer DeBoer saw was a car moving at a pace within the prescribed speed limit.

[¶ 27.] A vehicle traveling within the posted speed but 15 mph below the speed limit is not a reasonable indication that police -intervention is warranted. “The mere fact that a driver is traveling at a slower than usual speed on a roadway does not by itself create a reasonable suspicion of driving under the influence of alcohol or other illegal activity.” State v. Brown, 509 N.W.2d 69, 71 (N.D.1993). In other words, Officer DeBoer must have had an objective basis to stop Rinehart’s vehicle. This is true whether the stop is part of the community caretaking function or to investigate criminal activity. Thus, extrinsic objective evidence must demonstrate that illegal activity is afoot or community care-taking is needed before an officer can make a constitutionally permissible stop.

[¶ 28.] Because Officer DeBoer had no independent articuable facts that Rine-hart’s car had malfunctioned or that Rine-hart was in physical peril, he had no legal justification to pull him over. “[H]owever well-intentioned the stopping may have been in this case, the risk for abuse is real.” Doheny v. Comm, of Public Safety, 368 N.W.2d 1, 2 (Minn.App.1985). The risk of abuse, in this case, cannot be overcome by mere whim no matter how heartfelt the officer may be. An objective standard, where articuable facts are proffered, is the only benchmark for which we judge whether a search or seizure is consistent with the auspices of the Fourth Amendment. An officer’s subjective motive cannot supplant objective “reasonableness” of the Fourth Amendment.

[¶ 29.] This Court has gone too far. This Court’s pronouncement all but vitiates any Fourth Amendment protection. Officers in training will be taught to use the magic language at trial: “I was acting in my community caretaking capacity when I stopped the defendant’s vehicle.” As endorsed by this Court, employment of such a maneuver would allow police carte blanche power to stop anyone, at any time, for any reason. Certainly, a citizen’s constitutional right to be free from unreasonable search and seizure should not depend on a catch phrase of the arresting officer. With the adoption of this rule, under these facts, a police state is not too far away. An officer is always acting within a community caretaking function whether investigating a crime or helping an elderly lady cross the street. The rule announced today begs the question: when is an officer not acting within its community caretaking function?

[¶ 30.] Therefore, I dissent.

      . In reviewing the' authorities relied upon by the majority, no decision defines what conduct does or does not constitute "community caretaking.” It is fair to assume, however, that whenever a police officer is on duty, he or she is performing a community caretaking function. Thus, the community caretaking exception swallows the rule for Fourth Amendment protection.

      . An "objective reasonable basis” or "reasonable concern" should not be confused with the legal standard of reasonable suspicion. If the Court is to adopt the "community caretak-ing” exception, then it must have some objective standard. Not only does the majority’s opinion support the "community caretaking” exception, but also because of the deficient factual basis to make such a stop, it adopts a subjective standard, relying solely on what Officer DeBoer later claimed he actually thought.

      . As the facts indicate, it was 1 a.m. and the only traffic in the vicinity was Officer DeBoer and Rinehart. There is nothing in the record to support that the stop was reasonable because no impeding actually occurred. Likewise, the potentiality of a violation of a statute is not the test. If it were, then almost all stops would be valid based on the potentiality to violate traffic ordinances. Nowhere in the statute does it read that the potentiality of impeding traffic is a violation. Thus, the majority is left with reasonable suspicion of DUI as its sole basis to stop Rinehart’s vehicle. Under the majority's holding, driving 15 mph under the speed limit equates to reasonable suspicion. I agree with other courts that have held slow speed, by itself, is not enough to make a legally justifiable stop under the Fourth Amendment. See infra.


source: Caselaw Access Project

author: McGIVERIN, Chief Justice.

license: Public Domain

text:
    Bernard MAUK, Appellant, v. STATE of Iowa DEPARTMENT OF HUMAN SERVICES, Appellee.
    No. 97-922.
    Supreme Court of Iowa.
    Oct. 11, 2000.

      Bernard Mauk, pro se, Pleasant Hill, appellant.
    Thomas J. Miller, Attorney General, and Kathrine S. Miller-Todd, Assistant Attorney General, for appellee.
   McGIVERIN, Chief Justice.

Petitioner Bernard Mauk seeks further review of a decision of the court of appeals, which upheld a refusal by respondent Iowa Department of Human Services (DHS) to correct an entry in the state child abuse registry concerning an allegation of child abuse by Mauk of his daughter L.M.

Upon our review, we conclude that the administrative law judge (ALJ) erred in refusing to allow Mauk to call his daughter L.M. and son J.M. to testify at a hearing concerning Mauk’s request for correction of information in the child abuse registry. We therefore vacate the court of appeals decision, and reverse the judgment of the district court with instructions to remand the case to the DHS for a new hearing, at which time petitioner shall be allowed to call L.M. and J.M. as witnesses.

I. Background facts and proceedings.

Petitioner Bernard Mauk is the father of a female child, L.M.

On September 12, 1988, the DHS was contacted by Diana Cornish who alleged that her three and one-half-year-old daughter, L.M., had been sexually abused by her ex-husband, Bernard Mauk. The allegations were based on information L.M. told to her step-father, Brian Cornish. Upon receipt of this information, the DHS began an investigation concerning the alleged incident of abuse. See Iowa Code § 232.71 (1987) (discussing duties of DHS concerning investigation of report of alleged child abuse, now codified at Iowa Code § 232.71B (1999)).

During the investigation, DHS child protective investigator, Connie MacLellan, attempted to arrange an interview with Mauk through his attorney. The parties could not agree, however, on a location for the interview and none was ever held.

Upon completion of the investigation, MacLellan concluded that the complaint of child abuse of L.M. by Mauk, specifically lascivious acts with a child, was “founded.” As a result, on September 26, 1988, the DHS filed its findings of “founded” child abuse by Mauk with the Iowa Child Abuse Registry. See Iowa Code § 232.71(8) (now codified at Iowa Code § 232.71D(3) (1999)).

Thereafter, in 1989, Mauk filed a request to correct information in the child abuse registry. See id. § 235A.19(2) (outlining procedure concerning request for correction of information in child abuse registry or of findings of child abuse investigation). The DHS denied Mauk’s request. Mauk then filed an appeal and was granted an evidentiary hearing. Due to numerous postponements, however, a hearing before an ALJ was not held until September 13,1995.

Prior to the September 13, 1995, hearing, Mauk caused subpoenas to be issued for L.M., who was then eleven, and for his son J.M., to appear and testify at the hearing before the ALJ. The ALJ in 1995, however, granted the DHS’s motion to quash the subpoenas, based on the ALJ’s finding that L.M.’s memory of the alleged incident, which happened seven years previously, would not be reliable. The ALJ also stated that J.M., who was seven years old at the time of the alleged incident, had no knowledge of any abuse of his sister by Mauk. The ALJ also noted that administrative hearings are stressful and stated that “[t]o subject children to such a hearing when their testimony would provide minimal information would not be in their best interests.”

At the evidentiary hearing before the ALJ, Diana, mother of L.M., and three health care professionals testified concerning what L.M. allegedly told them in 1988 regarding the alleged incident of abuse. Mauk cross-examined each witness. Brian Cornish’s deposition was also introduced during the hearing. Mauk testified, but L.M. did not.

The ALJ concluded that the abuse report concerning Mauk should not be corrected. On appeal, the ALJ’s proposed decision was later adopted by the DHS as the agency’s final decision.

Thereafter, Mauk filed a petition for judicial review in district court, seeking review of the agency’s decision. See id. § 235A.19(3) (outlining procedure for review of DHS’s decision by judicial review in district court pursuant to Iowa Code chapter ' 17A). The court upheld 'the DHS’s refusal to correct information in the child abuse registry.

Upon Mauk’s appeal, we transferred the case to the court of appeals, which affirmed the district court’s judgment.

We granted Mauk’s application for further review.

II. Standard of review.

In this administrative proceeding, our review is governed by Iowa Code section 17A.19(8). See Iowa Code § 235A.19(3) (stating that appeal from denial of a request for correction of information or findings of child abuse investigation shall be taken in accordance with Iowa Code chapter 17A). In reviewing the district court’s decision in this case, we apply the standards of section 17A.19(8) to the agency’s action to determine whether our conclusions are the same as those of the district court. IBP, Inc. v. Iowa Employment Appeal Bd., 604 N.W.2d 307, 311 (Iowa 1999). In doing so, we may reverse, modify, or grant any other appropriate relief from the agency action if substantial rights of the petitioner have been prejudiced because of such action. Iowa Code § 17A.19(8). “[W]e accord limited deference to the agency’s interpretation of law, including statutory interpretation.” McCracken v. Iowa Dep’t of Human Serv., 595 N.W.2d 779, 783 (Iowa 1999). The agency’s findings of fact are binding on us if supported by substantial evidence when the record is viewed as a whole. IBP, Inc., 604 N.W.2d at 311. Evidence is substantial if a reasonable person would find it adequate to reach a conclusion. Id.

III. Iowa child abuse registry, Iowa Code chapter 235A.

The Iowa child abuse information registry, found within the Iowa Department of Human Services, is the central registry for child abuse information. Iowa Code § 235A.14(1); see also id. § 232.68(5) (defining “registry”). Iowa Code chapter 235A outlines the procedure for filing a request to correct information in the child abuse registry. We have explained the purpose of the child abuse registry as follows:

Under the statutory scheme of chapter 235A, DHS is charged with responsibility to organize and staff a registry for the collection, maintenance and dissemination of child abuse information. Iowa Code § 235A.14(1), (2). The purpose of the registry is to aid the research and identification of victims or potential victims of child abuse through one statewide source of data. Iowa Code § 235A.12. The statute is also designed to provide safeguards against the unwarranted invasion of privacy which such registry might otherwise entail. Id.

Reynolds v. Iowa Dep’t of Human Serv., 493 N.W.2d 813, 815 (Iowa 1992).

When a report of abuse is made, the DHS is obliged to promptly commence an appropriate investigation concerning the reported allegation of abuse. Iowa Code § 232.71(1). Upon completion of its investigation, the DHS shall prepare a report of its investigation, see id. § 232.71(7), and transmit a copy of the report, including actions taken or contemplated, to the child abuse registry, see id. § 232.71(8).

Additionally, the DHS must “notify a subject of the report of the result of the investigation, of the subject’s right to correct the information pursuant to section 235A.19, and of the procedures to correct the information.” See id. § 232.71(7). A request to correct information in the child abuse registry or the findings of the child abuse investigation must be filed within six months of the date that the subject of the report receives notice of the results of the child abuse investigation. See id. § 235A.19(2). “The department shall provide the person with an opportunity for an evidentiary hearing pursuant to chapter 17A to correct the information or the findings .... ” Id. The decision resulting from the hearing before the DHS may be appealed to district court by filing a petition for judicial review pursuant to Iowa Code chapter 17A. See id. § 235A.19(3).

IV. Requested testimony of victim at agency hearing.

A. Mauk’s contentions and the agency’s decision.

Prior to the September 13, 1995, hearing, the ALJ sustained the DHS’s motion to quash subpoenas issued for Mauk’s daughter L.M. and for his son J.M., based on the ALJ’s conclusion that L.M.’s memory of the alleged incident that occurred seven years previously, and when she was three and one-half years old, would not be reliable. The ALJ also commented that administrative hearings are stressful and that “[t]o subject children to such a hearing when their testimony would provide minimal information would not be in their best interests.” Mauk argues that the ALJ’s action in quashing the subpoenas deprived him of his right to due process and a fair hearing guaranteed by the Fourteenth Amendment to the United States Constitution and applicable statutory and agency rules.

B. Applicable law.

Mauk’s evidentiary hearing before the ALJ, provided by Iowa Code section 235A.19(2), was a contested case proceeding. See Bernau v. Iowa Dep’t of Transp., 580 N.W.2d 757, 766 (Iowa 1998) (stating the rule that a hearing is a contested case if the constitution or a statute requires an evidentiary hearing). Accordingly, the hearing was governed by the procedural rules listed in Iowa Code sections 17A.12 and 17A.13. Specifically, Mauk was entitled to present evidence and argument on all issues involved, see Iowa Code § 17A.12(4); Iowa Admin. Code r. 441 — 7.13(2) (regarding conduct of administrative hearing; party shall have right to introduce any evidence on points at issue); Iowa Admin. Code r. 441 — 7.13(3) (stating that party shall have opportunity to respond and present evidence and arguments on all issues involved), and had the right to cause subpoenas to be issued, see Iowa Code § 17A.13(1) (“Agency subpoenas shall be issued to a party on request.”); Iowa Admin. Code r. 441 — 7.12 (departmental subpoenas shall be issued to a party upon request). Additionally, Mauk had the same rights to discovery as applicable to civil actions. See Iowa Code § 17A.13(1) (“Discovery procedures applicable to civil actions are available to all parties in contested cases before an agency.”); accord Dunlavey v. Economy Fire & Cas. Co., 526 N.W.2d 845, 858 (Iowa 1995). These procedural rules are in place to ensure that a party to an administrative hearing is afforded due process, ie., that the party is given adequate notice and an opportunity to defend concerning the action of an agency. See Alfredo v. Iowa Racing & Gaming Comm’n, 555 N.W.2d 827, 833 (Iowa 1996).

C. Application of legal principles.

We concluded in In re E.H. III, 578 N.W.2d 243, 246 (Iowa 1998), that a father’s Sixth Amendment right of confrontation, see U.S. Const, amend. VI, did not apply to a civil child in need of assistance (CINA) proceeding and thus, the father had no constitutional right to call his children as witnesses at a hearing concerning the State’s motion for a “no contact” order against the father. See also In re L.K.S., 451 N.W.2d 819, 822 (Iowa 1990) (holding there is no Sixth Amendment right to confrontation in CINA proceedings). We further concluded that the trial court had discretion to determine that a child need not be called as a witness when the best interests of the child militated against use of the child’s testimony in juvenile court. E.H. III, 578 N.W.2d at 246.

Following our reasoning in E.H. Ill, Mauk did not have a constitutional Sixth Amendment right to confront L.M. or to call her as a witness in the hearing before the ALJ. Accordingly, Mauk’s constitutional right to confrontation of witnesses was not infringed.

We reach a different result, however, with respect to whether the ALJ’s decision, that causing L.M. and J.M. to testify during the agency hearing would not be in their best interests, is supported by substantial evidence. The ALJ quashed the subpoenas for Mauk’s children, in part, based on its finding that “[t]o subject [the] children to such a hearing when their testimony would provide minimal information would not be in their best interests.” In other words, the ALJ concluded that Mauk was not entitled to exercise his right under statutory and agency rule provisions to call witnesses, based on the ALJ’s finding that causing the children to testify would not be in their best interests.

Upon our review, we conclude that substantial evidence does not exist in the record in this case to support the ALJ’s ruling quashing the subpoenas. First, the ALJ’s ruling, which was adopted by the DHS, does not cite specific evidence in the record by any of the professionals who examined L.M. as support for the conclusion that causing L.M.-to testify would not be in her best interests or would otherwise be traumatic. More importantly, the ALJ did not consider L.M.’s current psychological development at the time of the hearing in 1995, which was held seven years after the alleged incident occurred. Instead, the ALJ simply commented in general about the stress children may experience in testifying in such situations. Additionally, the extent of L.M.’s memory of the alleged incident would best be determined by calling her to testify, rather than by assuming what she remembered and what she did not. For these reasons, J.M. also should be allowed to testify, although it appears he may have little knowledge of the alleged incident.

We therefore conclude that the ALJ’s reason for quashing the subpoenas is not supported by substantial evidence in the record. We also find no other reason for the ALJ’s refusal to allow Mauk to exercise his right under statutory and agency rule provisions to call witnesses to testify at the evidentiary, contested case hearing. Due to the above conclusions, we need not address whether Mauk’s right to constitutional due process under the Fourteenth Amendment has been infringed. Accordingly, we reverse the judgment of the district court upholding the agency’s ruling on this issue.

Because we conclude that Mauk should be allowed to call L.M. and J.M. to testify concerning the alleged incident, we also believe that Mauk’s assignment of error concerning his request to admit into evidence a videotape of his interview with his children is moot.

V. Disposition.

Upon our review, we also find it unnecessary to address other contentions raised by Mauk because error was either not preserved or the contentions are without merit. No reversible error exists as to those assignments.

We conclude that the ALJ, whose decision was affirmed by the'agency, erred in quashing Mauk’s subpoenas to require his daughter L.M. and son J.M. to testify at the hearing concerning his request to correct information in the child abuse registry.

We vacate the decision of the court of appeals and reverse the judgment of the district court. The case is remanded to the district court with directions to remand the case to the Department of Human Services for allowance of subpoenas for Mauk’s daughter L.M. and son J.M. to require their testimony at a new hearing before the agency.

At such hearing, the agency shall consider the testimony of L.M. and J.M. along with the evidence received at the 1995 hearing and make a new ruling concerning Mauk’s request for correction of information in the Iowa child abuse registry. We express no opinion as to the merits of Mauk’s request.

Costs on appeal are taxed to the appel-lee.

COURT OF APPEALS DECISION VACATED; DISTRICT COURT JUDGMENT REVERSED; CASE REMANDED.

All justices concur except SNELL, J., who takes no part.

      . All code section citations are to the 1987 Code unless otherwise indicated.


author: CARTER, Justice.

text:
    Kathy SPAHR, Appellant, v. JoAnn KRIEGEL and Martin Imster, Individually and as Co-Executors of the Estate of Fred Hefflefinger, Deceased; Olin Telephone Company, Inc.; and KLK Construction Corp., Appellees.
    No. 98-1578.
    Supreme Court of Iowa.
    Oct. 11, 2000.

      Peter C. Riley of Tom Riley Law Firm, P.L.C., Cedar Rapids, and Douglas D. Wolfe of Wolfe Law Offices, Mount Vernon, for appellant.
    Gerald T. Sullivan of Crawford, Sullivan, Read & Roemerman, P.C., Cedar Rapids, for appellees Kriegel and Imster.
    James P. Craig and Cynthia S. Scherr-man Sueppel of Moyer & Bergman, P.L.C., Cedar Rapids, for appellee Olin Telephone Company.
    Gregory M. Lederer and Paul P. Morf of Simmons, Perrine, Albright & Ellwood, P.L.C., Cedar Rapids, for appellee KLK Construction Corp.
   CARTER, Justice.

Plaintiff, Kathy Spahr, who was injured while attending an estate sale, appeals from an adverse judgment in her premises-liability action. The appellees are defendants JoAnn Kriegel and Martin Im-ster, individually and as executors of the estate of Fred Hefflefinger, deceased, who conducted the auction in question. Other appellees are defendant Olin Telephone Company, Inc. (telephone company), which had installed a fiber-optic cable line adjacent to the Hefflefinger property where the auction was held, and defendant KLK Construction Corp. (KLK), a contractor that had worked on the cable installation.

Plaintiff contends the district court erred in the following particulars: (1) by-excluding evidence of vertical digging at a different time and place; (2) by overruling a request to call a rebuttal witness for purposes of contradicting testimony concerning the absence of parked cars on the street in front of the Hefflefinger residence; (3) in instructing the jury on mitigation of damages and circumstantial evidence; and (4) as to defendant KLK, in failing to properly instruct the jury concerning the liability of one who is not a possessor of land but who creates a dangerous condition on the land. After reviewing the record and considering the arguments presented, we affirm the judgment of the district court.

Plaintiff was injured when she stepped in a hole while attending an estate auction conducted by Kriegel and Imster, as executors of the Hefflefinger Estate. The hole was located in the parking (the grassy area between the sidewalk and the street) adjacent to the Hefflefinger property in Olin, Iowa. It was plaintiffs theory in the district court that she stepped in a vertical hole that was dug along the cable route for purposes of locating the depth of sewer lines or other underground utilities. Both KLK’s superintendent and the telephone company’s general manager testified that no vertical holes had been dug in the parking fronting the Hefflefinger residence during the cable installation.

Prior to trial, consortium claims by plaintiffs husband and son were voluntarily dismissed. The remaining claims were tried to a jury. The jury returned a series of special verdicts finding no fault on the part of any of the defendants and attributing 100% of the causal fault to the plaintiff. Further details bearing on the parties’ contentions will be discussed in our consideration of the legal issues presented.

I. Exclusion of Testimony Concerning Vertical Digging at a Different Time and Place.

Plaintiff testified that the hole in which she stepped was round with smooth sides and looked as if it had been dug with an auger. As we have noted, both KLK’s superintendent and the telephone company’s general manager testified that there was no vertical digging in installing the cable line in the parking adjacent to the Hefflefinger property. The KLK superintendent testified that there was vertical digging at other locations but that it was done with a backhoe. The cable installation by the telephone company and KLK in front of the Hefflefinger residence was in the summer of 1994. Plaintiffs injury occurred in May 1996. The trial took place in May and June of 1998. During the trial, plaintiffs counsel attempted to question the telephone company superintendent, Mr. Cozart, concerning vertical digging that was taking place in a different cable installation project being carried out in Olin at that very time. That project was being done nearly four years after the cable work in front of the Hefflefinger residence. It was in a different part of town, and was being performed by a different contractor. The district court excluded this evidence on relevancy grounds.

Plaintiff urges that the ruling excluding this evidence was an abuse of discretion because it tends to establish that vertical digging does take place in the installation of fiber-optic cable and that the holes it creates are similar to the type of hole into which plaintiff had stepped in 1996. She sought to confirm the latter point by examining Cozart with respect to photographs of a vertical hole on the 1998 project.

A trial court has a wide discretion in the matter of relevancy rulings. Carter v. MacMillan Oil Co., 365 N.W.2d 52, 55 (Iowa 1984). Evidence is relevant if it renders the existence of a fact more probable or less probable as a result of that evidence. Briner v. Hyslop, 337 N.W.2d 858, 869 (Iowa 1983); Carson v. Mulnix, 263 N.W.2d 701, 706 (Iowa 1978). With respect to the line of questioning at issue here, the trial court could properly have concluded that the digging of vertical holes by the contractor on the 1998 fiber-optic cable installation was not probative of whether KLK dug similar vertical holes during its 1994 cable installation project or where such holes were dug.

As an alternative argument, plaintiff urges that further examination of Cozart on the location of vertical holes during the 1998 fiber-optic cable installation should have been permitted for purposes of impeaching other testimony by that witness concerning the location of vertical holes related to the 1998 project. The testimony sought to be impeached was given during preliminary questioning on the subject of the 1998 project and prior to the trial court’s ruling that this area of inquiry was not relevant. Because the entire line of inquiry was not relevant, any attempt to disprove Cozart’s initial answers on this subject was properly denied by the trial court. See State v. Roth, 403 N.W.2d 762, 767 (Iowa 1987) (impeachment evidence must be admissible for some proper purpose independent of the contradiction).

II. Refusal to Allow Rebuttal Testimony.

An issue arose at trial concerning the presence of cars parked on the street in front of the Hefflefinger residence at the time the plaintiff stepped in the hole in the parking. Plaintiffs own testimony on this issue was equivocal. Another witness called by plaintiff during her case in chief testified that there were no cars parked on the street. Several witnesses called by the defendants confirmed that assertion. In refusing to allow rebuttal testimony concerning the parked cars, the district court concluded that this was not a new issue raised during the presentation of evidence for the defendants, and thus, rebuttal evidence was not appropriate.

We have recognized that

[rjebuttal is not intended to give a party an opportunity to tell his [or her] story twice or to present evidence that was proper in the case in chief.... Thus, evidence which is merely cumulative, adding nothing further to the position taken by previous witnesses, which merely bolsters or supplements that already adduced by the plaintiff, is not admissible as rebuttal.

Carolan v. Hill, 558 N.W.2d 882, 889 (Iowa 1996) (quoting 75 Am.Jur.2d Trial § 374, at 573 (1991)). We find that the district court’s ruling was consistent with the limitation expressed in the Carolan case and was not in error.

III. Objections to Instructions.

A. Failure to mitigate damages. Plaintiff asserts that the trial court erred in instructing the jury it could consider her failure to attend prescribed physical therapy sessions as a basis for finding contributory fault on her part. She urges that before a contributory fault issue may be based on a failure to follow medical advice, there must be some expert medical evidence that the failure made a difference in the patient’s recovery. She contends there is no such evidence in the record.

Assuming that plaintiffs argument on the submission of contributory fault is valid, we are convinced that the judgment should not be reversed on this basis. The trial court’s instructions and verdict forms submitted the fault issue to the jury in sequence and required the fault finding relating to the defendants to be made first. Acting in this sequence, the jury found no causal fault on the part of any of the defendants. Consequently, error, if any, in the instructions dealing with plaintiffs contributory fault did not affect the verdict.

B. Instructions on circumstantial evidence. Plaintiff contends that the district court erred in not giving her proposed instruction on circumstantial evidence. The instruction that was requested read as follows:

Direct and circumstantial evidence are equally probative. An issue may be proven by circumstantial evidence, but this evidence must be such as to make the theory reasonably probable, not merely possible, and more probable than any other theory based on such evidence.

In lieu of giving this instruction, the trial court instructed the jury as follows:

Facts may be proved by direct evidence, circumstantial evidence, or a combination of both. “Direct evidence” is the testimony of a person who claims direct sensory knowledge of a fact, such as an eye witness. “Circumstantial evidence” is the testimony of a person as to certain facts which tend to indicate that some other facts, not directly observed, [are] true. The weight to be given any evidence is for you to decide.

The second sentence in plaintiffs proposed instruction contradicts the conclusion that this court announced in Beck v. Fleener, 376 N.W.2d 594, 597 (Iowa 1985), which eliminated any distinction between direct and circumstantial evidence with respect to probative value. Although the first sentence of the proposed instruction was an accurate statement of the law, we believe that the idea that it expresses is embodied in the district court’s direction to the jury that the weight to be given any evidence is for the jury to decide. We find no error in the refusal of the proposed instruction.

C. Instructions on the claim against KLK. Plaintiff contends that as to the defendant KLK the trial court erred in failing to instruct the jury as to the liability of one who is not a possessor of land but who creates a dangerous condition on the land. Plaintiff submits that on this point the jury should have been instructed in accordance with the doctrine expressed in section 386 of the Restatement (Second) of Torts (1965). That section of the Restatement provides:

Any person, except the possessor of land or a member of his household or one acting on his behalf, who creates or maintains upon the land a structure or other artificial condition which he should recognize as involving an unreasonable risk of harm to others upon or outside of the land, is subject to liability for physical harm thereby caused to them....

Relying on this section of the Restatement, plaintiff requested that the court instruct the jury as follows with respect to her claim against KLK:

For her claim against Defendant KLK, plaintiff must prove the following propositions:
1. KLK created an artificial condition on the parking which involved an unreasonable risk of physical harm to Kathy Spahr.
2. This condition was a proximate cause of damage to Kathy Spahr.
3. The amount of damages.
If plaintiff has failed to prove any of these propositions, she is not entitled to damages from KLK. If plaintiff has proved all of these propositions, you will consider the defense of comparative fault as explained in Instruction No. 22.

Instead of instructing as requested by plaintiff, the district court instructed the jury with respect to a specification of negligence advanced during trial. That instruction read as follows:

Kathy Spahr must prove all of the following elements by a preponderance of the evidence, in order to recover against KLK.
1. That Olin Phone Company hired KLK to install a fiber optic cable system.
2. That KLK was negligent in failing to properly tamp a vertical hole created by KLK during directional boring in 1994, in the course of the fiber optic cable system project.
3. That KLK’s negligence was a cause of damage to Kathy Spahr.
4. The nature and extent of damage.

Although, as plaintiff suggests, section 386 of the Restatement may well describe the extent of KLK’s liability to plaintiff, we are not convinced that the trial court was required to submit the issue in terms of the Restatement’s language. The concept of “an unreasonable risk of physical harm to others” expressed in the Restatement rule is clearly a negligence standard. In this jurisdiction there is a preference in negligence trials for submitting issues based on particular specifications of negligence as opposed to broad general duties. Bigalk v. Bigalk, 540 N.W.2d 247, 249 (Iowa 1995). We believe that the trial court’s instructions were true to this principle and served to adequately present the issues to the jury.

We have considered all issues presented and conclude that the judgment of the district court should be affirmed.

AFFIRMED.

All justices concur except SNELL, J., who takes no part.


author: KAPSNER, Justice.

text:
    2000 ND 182
    BURLINGTON NORTHERN AND SANTA FE RAILWAY COMPANY, Ronald Hausmann, Lila Hausmann, Donald Haugen, and Charles Studness, Appellants, v. BENSON COUNTY WATER RESOURCE DISTRICT, Appellee.
    Nos. 990368-990373, 990378-990380.
    Supreme Court of North Dakota.
    Oct. 26, 2000.

      Daniel J. Crothers, Nilles, Hansen & Davies, Ltd., Fargo, for appellants Burlington Northern and Santa Fe Railway Company, Duane R. Breitling and Steven E. McCullough, Ohnstad Twichell, Fargo, for appellants Ronald Hausmann, Lila Hausmann, and Donald Haugen, and Joseph J. Cichy, Olson Cichy, Bismarck, for appellant Charles Studness.
    Michael A. Dwyer, Dwyer Law Office, Bismarck, for appellee.
   KAPSNER, Justice.

[¶ 1] Burlington Northern and Santa Fe Rail Railway Company (“BN”); Ronald Hausmann and Lila Hausmann (“Haus-manns”); Donald Haugen; and Charles Studness appealed a district court order of October 6, 1999, and judgment of October 14, 1999, affirming revised findings of fact, conclusions of law, and order issued by the Benson County Water Resource District (“District”) on May 4, 1999, requiring the installation of culverts through a township road and a railroad. We conclude the District exceeded its authority, and we reverse.

I

[¶ 2] A recent wet cycle has resulted in high water levels throughout the Devils Lake Basin. This matter concerns flooding and water management in and around Normania Township in Benson County. Two wetlands — one identified as Slough A in Sections 3 and 4 in Normania Township and one identified as Hausmann Slough in Section 34 of Irvine Township — are involved. A BN railroad track and U.S. Highway No. 2 lie between the two wetlands, and a township road runs through Slough A.

[¶ 3] The District conducted a public hearing in 1998 to receive information about flooding. On March 17, 1999, the District held a hearing to receive additional evidence. The District found:

6. The Burlington Northern-Santa Fe Railroad serves as an obstruction to the natural flow of water.
8. The installation of a culvert or pipe through the BNSF railroad would allow the water in Slough A to flow in its natural course to the north and east, eventually reaching Hausmann Slough.
9. Slough A is divided by a north/south township road which runs between Sections 3 and 4 of Normania Township. This township road obstructs the natural flow of water in a southeasterly direction from Slough A.

The District ordered:

1. A 24 inch diameter corrugated metal pipe is recommended to be installed through the north-south township road approximately 1000 feet north of the section corner common to Sections 3, 4, 9 and 10 of Normania Township....
3. A 24 inch diameter opening shall be installed through the BNSF railroad. The type of opening (metal or concrete) shall be determined by the BNSF Railroad Co. The opening shall be installed at ground elevation, but not higher than the natural outflow elevation of 1469.9 msl. The opening shall be located approximately 1525 feet east from the section line common to Section 3 and 4 of Normania Township.
4. The openings and other actions required under this order shall be installed or completed in a simultaneous manner (at the same time).

[¶ 4] The district court affirmed the District’s order and these appeals were taken. BN contends the District’s order should be vacated. Hausmanns and Haugen contend the district court judgment should be reversed and the District’s order vacated to the extent it orders BN to install a culvert under its railroad track. Studness contends the judgment should be reversed with regard to the District’s order for installation of a culvert in the township road and affirmed with regard to the District’s order for a culvert under BN’s railroad track. The District contends the district court judgment should be affirmed.

II

[¶ 5] Our scope of review in appeals involving decisions of water resource districts is limited:

“In an appeal from the decision of a local governing body under N.D.C.C. § 28-34-01, our scope of review is the same as the district court’s and is very limited. Pic v. City of Grafton, 1998 ND 202, ¶¶ 6, 8, 586 N.W.2d 159. Our function is to independently determine the propriety of the decision, without according any special deference to‘the district court’s decision, and unless the Board acted arbitrarily, capriciously or unreasonably, or there is not substantial evidence to support the decision, it must be affirmed. Anderson v. Richland County Water Res. Bd., 506 N.W.2d 362, 367 (N.D.1993). A decision is not arbitrary, capricious or unreasonable if the exercise of discretion is the product of a rational mental process by which the facts and the law relied upon are considered together for the purpose of achieving a reasoned and reasonable interpretation.”

Graber v. Logan County Water Res. Bd., 1999 ND 168, ¶7, 598 N.W.2d 846. “A commission’s failure to correctly interpret and apply controlling law is arbitrary, capricious, and unreasonable.” Gullickson v. Stark County Bd. of County Comm’rs., 474 N.W.2d 890, 892 (N.D.1991).

Ill

[¶ 6] The District argues “the broad authority given to water resource districts in N.D.C.C. § 61-16.1-09(5-7), along with the provisions of N.D.C.C. §§ 61-16.1-09(21) and 61-01-07, when read in context with N.D.C.C. § 61-16.1-42, should result in the interpretation that water resource districts have the authority to order necessary openings through railroads.” The District argues “this case is a logical extension” of our decision in Southeast Cass Water Res. Dist. v. Burlington Northern R.R. Co., 527 N.W.2d 884 (N.D.1995).

[¶ 7] Water resource boards “are political subdivisions of the State of North Dakota.” Anderson v. Richland County Water Res. Bd., 506 N.W.2d 362, 366 (N.D.1993). “The legislative assembly shall provide by law for the establishment and the government of all political subdivisions. Each political subdivision shall have and exercise such powers as provided by law.” N.D. Const, art. VII, § 2. A political subdivision’s “rights and powers are determined and defined by law.” Eikevik v. Lee, 73 N.D. 197, 203, 13 N.W.2d 94, 97 (1944). “[D]rainage boards are creatures of statute, and they have no powers except such as are expressly granted by the statute or reasonably implied from the powers granted.” Freeman v. Trimble, 21 N.D. 1, 9, 129 N.W. 83, 87 (1910). See also 5 Waters and Water Rights § 59 — 04(b)(3) (Robert E. Beck ed., 1991 ed., 1998 repl.) (“[Drainage] districts have only such powers as have been delegated to them by the enabling legislation.”).

[¶ 8] “[A] water resource district’s' statutory powers are found in Title 61 [N.D.C.C.].” Ness v. Ward County Water Res. Dist, 1998 ND 191, ¶ 12, 585 N.W.2d 793. Section 61-01-07, N.D.C.C., provides:

If any person illegally obstructs any ditch, drain, or watercourse, or diverts the water therein from its natural or artificial course, the person is liable to the party suffering injury from the obstruction or diversion for the full amount of the damage done, and, in addition, is guilty of a class B misdemeanor.

Section 61-16.1-09, N.D.C.C., provides, in part:

Each water resource board shall have the power and authority to:
5. Plan, locate, relocate, construct, reconstruct, modify, maintain, repair, and control all dams and water conservation and management devices of every nature and water channels, and to control and regulate the same and all reservoirs, artificial lakes, and other water storage devices within the district.
6. Maintain and control the water levels and the flow of water in the bodies of water and streams involved in water conservation and flood control projects within the district and regulate streams, channels, or watercourses and the flow of water therein by changing, widening, deepening, or straightening the same, or otherwise improving the use and capacity thereof.
7.Regulate and control water for the prevention of floods and flood damages by deepening, widening, straightening, or diking the channels or floodplains of any stream or watercourse within the district, and construct reservoirs or other structures to impound and regulate such waters.
21. Coordinate proposals for installation, modification, or construction of culverts and bridges in an effort to achieve appropriate sizing and maximum consistency of road openings. The department of transportation, railroads, counties, and townships shall cooperate with the districts in this effort. Each district shall also consider the possibility of incorporating appropriate water control structures, where appropriate, as a part of such road openings.

Section 61-16.1-42, N.D.C.C., provides:

Drains may be laid along, within the limits of, or across any public road or highway, but not to the injury of such road. In instances where it is necessary to run a drain across a highway, the department of transportation, the board of county commissioners, or the board of township supervisors, as the case may be, when notified by the water resource board to do so, shall make necessary openings through the road or highway at its own expense, and shall build and keep in repair all required culverts or bridges as provided under section 61-16.1-43. In instances where drains are laid along or within the rights of way of roads or highways, the drains shall be maintained and kept open by and at the expense of the water resource district concerned. A drain may be laid along any railroad when necessary, but not to the injury of the railroad, and when it is necessary to run a drain across the railroad, the railroad company, when notified by the water resource board to do so, shall make the necessary opening through such railroad, shall build the required bridges and culverts, and shall keep them in repair.

A

[¶ 9] We have construed those statutes as providing water resource boards with authority to direct townships to install culverts to accommodate drains established by law, but not in natural watercourses or to preserve a natural drainway for surface waters. “[T]ownship boards, and not water resource districts, have supervisory authority under N.D.C.C. § 24-03-06 to decide whether to install a culvert beneath a township road to preserve a natural drainway for surface waters.” Ness v. Ward County Water Res. Dist, 1998 ND 191, ¶ 13, 585 N.W.2d 793.

While water resource districts have been given broad powers to control waters within their jurisdictions, see N.D.C.C. § 61-16.1-09(5-7) and (16), they have not been given authority to make the decision to install a culvert under a township road in a natural watercourse. Rather, water resource districts have the authority to direct a township to install a culvert to accommodate a drain.”

Kadlec v. Greendale Tp. Bd. of Tp. Supervisors, 1998 ND 165, ¶ 15, 583 N.W.2d 817. Reliance on Southeast Cass Water Res. Dist. v. Burlington Northern R.R. Co., 527 N.W.2d 884 (N.D.1995), is misplaced. In that case, we concluded “NDCC 61 — 16.1— 42 constitutionally places upon BN Railroad the continuing responsibility for the costs of accommodating its track to necessary drainage improvements.” Southeast Cass, at 885. However, that case involved drainage improvements to a drain established by law along a natural channel. We conclude the District did not have authority to order installation of a culvert in the township road.

B

[¶ 10] We turn now to the District’s authority to order BN to install a culvert. Section 61-16.1-01, N.D.C.C., broadly states the legislative purpose in establishing water resource districts:

The legislative assembly of North Dakota recognizes and declares that the general welfare and the protection of the lives, health, property, and the rights of all people of this state require that the management, conservation, protection, development, and control of waters in' this state, navigable or nonnavigable, surface or subsurface, the control of floods, the prevention of damage to property therefrom, involve and necessitate the exercise of the sovereign powers of this state and are affected with and concern a public purpose. To realize these objectives it is hereby declared to be the policy of the state to provide for the management, conservation, protection, development, and control of water resources and for the prevention of flood damage in the watersheds of this state and thereby to protect and promote the health, safety, and general welfare of the people of this state.
The legislative assembly further recognizes the significant achievements that have been made in the management, conservation, protection, development, and control of our water and related land resources, and declares that the most efficient and economical method of accelerating these achievements is to establish water resource districts encompassing all of the geographic area of the state, and emphasizing hydrologic boundaries.

Sections 61-01-07, 61-16.1-09(5), (6), (7), (21), and 61-16.1-42, N.D.C.C., relied on by the District, somewhat less expansively give water resource districts broad authority to control water in channels, water storage devices, conservation and flood control projects, streams, watercourses, ditches, and drains. The District did not find the surface waters involved in this case fall within any of these terms.

[¶ 11] Article XI, § 3, N.D. Const., provides: “All flowing streams and natural watercourses shall forever remain the property of the state for mining, irrigating and manufacturing purposes.” That provision applies “only to the waters of flowing streams and natural water courses.” Ozark-Mahoning Co. v. State, 76 N.D. 464, 37 N.W.2d 488, 493 (1949). The District did not find the water involved here is a stream or watercourse. “[T]he strict wording of’ our constitutional provision “would not make it applicable to ... diffuse ... surface water.” Nancy Jean Strantz, Rights to Ground Water in North Dakota: Trends and Opportunities, 71 N.D.L.Rev. 619, 627 n. 25. Diffused surface water has been defined as “[w]ater lying or flowing on the surface of the earth, but not confined to any waterbody, and including floodwater that has escaped from a stream channel, or water resulting from snowmelt, rainfall, or seepage, that is moving overland towards a stream or other waterbody.” 6 Waters and Water Rights 903 (Robert E. Beck ed., 1991 ed., 1994 Repl.).

[¶ 12] Under N.D.C.C. § 61-01-01, surface waters, except diffused surface waters, “belong to the public and are subject to appropriation.” Unlike the law relating to appropriating for use or consumption the water in streams or watercourses, “the law of diffused surface waters is more concerned with liability for damage suffered than it is with use rights in and to the water.” 9 Powell on Real Property, § 65.02[iii], p. 65-26 (Michael Allan Wolf, ed., 2000). With regard to harm caused by diffused surface water, “[o]rdinarily, the rule of reason is applied in a fashion traditional to nuisance or general tort law.” Id. at p. 65-27.

[¶ 13] Neither an owner of upper land nor an owner of lower land may interfere with natural drainage so as to injure the rights of the other. Kadlec v. Greendale Tp. Bd. of Tp. Supervisors, 1998 ND 165, ¶ 18, 583 N.W.2d 817. We have adopted the reasonable use rule for landowner management of diffused surface waters. See, e.g., Martin v. Weckerly, 364 N.W.2d 93, 94 (N.D.1985) (stating “[t]he reasonable-use rule is applied by courts in reconciling conflicting uses of surface water and the land over which it flows” and one’s use of property “must be reasonable so as not to cause unnecessary injury to others”); Henderson v. Hines, 48 N.D. 152, 159, 183 N.W. 531, 534 (1921) (holding that, with regard to surface waters, a landowner has the right to use his own property in such a manner as not to injure that of another). See also Jacobsen v. Pedersen, 190 N.W.2d 1 (N.D.1971) (citing Armstrong v. Francis Corp., 20 N.J. 320, 120 A.2d 4 (1956) and Enderson v. Kelehan, 226 Minn. 163, 32 N.W.2d 286 (1948)), and Jones v. Boeing Co., 153 N.W.2d 897 (N.D.1967). This Court has held drainage is governed by the reasonable use rule when the provisions of N-D.C.C. § 61-01-22 (requiring a permit to drain a pond, slough, or lake draining an area of 80 acres or more) did not apply. Young v. Hamilton, 332 N.W.2d 237, 240 (N.D.1983). “The question for North Dakota ... is whether anything more than this basic principle concerning land use governs drainage problems. The answer given generally in Jones [v. Boeing Co., 153 N.W.2d 897 (N.D.1967) ] is ‘No, that is it.’ ” Robert E. Beck and Bruce E. Bohlman, Drainage Law in North Dakota: An Overview, 47 N.D. L.Rev. 471, 477 (1971). Our decisions applying the reasonable use rule for landowner management of diffused surface waters have not involved governmental regulation.

[¶ 14] In light of the limiting language used in specifying the authority of water resource districts, our history of applying the reasonable use rule for landowner management of diffused surface waters without governmental regulation, and the lack of legislative definition of many of the terms used in specifying the authority of water resource districts, we are reluctant to construe N.D.C.C. § 61-16.1-42 to authorize the District to order BN to install a culvert through the bed of its railroad track. Without a more explicit legislative declaration of an intent to extend the power and authority of water resource districts to manage diffused surface waters, we decline the District’s invitation to so broadly construe the reach of N.D.C.C. § 61-16.1^12. We conclude the District did not have authority to order BN to install a culvert through the bed of its railroad track.

[¶ 15] We need not address other issues the parties have raised, as answers to those questions are not necessary to the determination of this appeal. Seela v. Moore, 1999 ND 243, ¶ 11, 603 N.W.2d 480.

[¶ 16] The order and judgment are reversed.

[¶ 17] GERALD W. VANDE WALLE, C.J., MARY MUEHLEN MARING, WILLIAM A. NEUMANN, DALE V. SAND-STROM, JJ., concur.

      . A similar requirement is now contained in N.D.C.C. § 61-32-03, which requires a permit to drain a pond, slough, lake, or sheetwa-ter (defined as "shallow water that floods land not normally subject to standing water’’) with a watershed of 80 acres or more. The District's decision in this case was not based upon that statute.

      . While we conclude the District lacks authority to order BN to install a culvert through the bed of its railroad track, this conclusion does not foreclose consideration of the matter in another forum. See, e.g., Fandrich v. Wells County Bd. of County Comm’rs, 2000 ND 181, 618 N.W.2d 166; Martin v. Weckerly, 364 N.W.2d 93 (N.D. 1985); Henderson v. Hines, 48 N.D. 152, 183 N.W. 531 (1921).


author: VANDE WALLE, Chief Justice.

text:
    2000 ND 184
    CITY OF MANDAN, Plaintiff and Appellant, v. Brian Quentin LENO, Defendant and Appellee.
    No. 20000104.
    Supreme Court of North Dakota.
    Oct. 26, 2000.

      Allen M. Koppy, City Prosecutor, Man-dan, for plaintiff and appellant. Submitted on brief.
    Rodney K. Feldner, Mandan, for defendant and appellee.
   VANDE WALLE, Chief Justice.

[¶ 1] The City of Mandan appealed from an order suppressing evidence in connection with a charge of driving while under the influence of intoxicating liquor. The trial court expanded the limited statutory right to a reasonable opportunity to consult with an attorney by holding the right existed prior to arrest. We reverse and hold the limited statutory right for a reasonable opportunity to consult with an attorney attaches only after arrest. We remand for a factual finding of whether or not Brian Quentin Leno invoked his right to consult with his attorney after arrest, prior to consenting to the ultimate eviden-tiary chemical test.

[¶ 2] On the evening of October 9, 1999, Officer Lonnie Grabowska of the Mandan Police Department was patrolling the downtown district of Mandan. At about 9:30 p.m. the officer observed a small white truck pull out of a parking lot in downtown Mandan. The truck made a wide turn, accelerated quickly, swerved, and crossed over onto the oncoming lane of traffic. The officer paced the truck’s speed at 45 miles per hour in a 25 mile per hour zone. At this point, the officer stopped the vehicle.

[¶ 3] The officer approached the vehicle and asked the driver, Brian Quentin Leno, for his license. Leno’s eyes were red and glossy in appearance and the officer detected a strong odor of alcoholic beverage. The officer recognized the passenger as an attorney with whom he had previously been in contact in DUI cases. The officer asked Leno if they had been drinking and Leno stated they had been drinking and they were just coming from the bar.

[¶ 4] The officer asked Leno if he would submit to some testing to verify his ability to operate his motor vehicle. Leno consented. The officer conducted four field sobriety tests outside the vehicles, between the truck and the patrol car. The officer then read Leno the implied consent advisory and asked if he would consent to an on-site pre-breathalyzer screening test. At this point, Leno asked if he could speak to his attorney, who remained seated in the truck. The officer explained that since Leno was not under arrest, he did not have a right to counsel prior to the on-site screening test. Leno consented to the on-site screening test which was also performed outside, between the two vehicles. Leno failed the test and the officer placed him under arrest for driving under the influence of alcohol.

[¶ 5] Leno was placed in the squad car, informed of the implied consent advisory for a blood test, and asked if he would submit to a blood test at the Law Enforcement Center. The officer testified Leno did not again ask to speak to his attorney at this point. Leno claims he did ask to speak with his attorney at this point. The district court noted this dispute but did not make a factual finding of whether or not Leno repeated his request to speak with his attorney after arrest. Leno was transported to the Law Enforcement Center where a blood test was administered. Following the administration of the blood test, Leno was allowed to consult with his attorney who had also been transported to the Law Enforcement Center. Leno . was charged with the class B misdemeanor offense of driving while under the influence of intoxicating liquor in violation of Section 20-19-01 of the Mandan Municipal Ordinances. Leno moved to suppress the blood test evidence. The district court granted the motion.

[f 6] Questions of law are fully reviewable on appeal. Thompson v. Associated Potato Growers, Inc., 2000 ND 95, ¶ 7, 610 N.W.2d 53. Concerning our review of findings of fact, however, “[w]e affirm a trial court’s decision on a motion to suppress unless, after resolving conflicting evidence in favor of affirmance, we conclude there is insufficient competent evidence to support the decision, or unless we conclude the decision goes against the manifest weight of the evidence.” State v. Kenner, 1997 ND 1, ¶ 7, 559 N.W.2d 538 (quoting State v. Hawley, 540 N.W.2d 390, 392 (N.D.1995)). This standard of review accords great deference to the trial court’s decision and recognizes the importance .of the opportunity to assess the credibility of the witness. Id.

[¶ 7] On appeal the City of Mandan asserts Leno did not have a right to counsel prior to arrest while merely being detained at a traffic stop. Leno’s only undisputed request to consult with counsel was prior to arrest. Since the trial court declined to make a factual finding of whether or not this request was repeated after arrest, we address only the issue of whether or not Leno had a right to counsel prior to arrest. Because this is a question of law, it is fully reviewable on appeal as noted above.

[¶ 8] The majority of this Court, in Kuntz v. State Highway Commissioner, 405 N.W.2d 285, 290 (N.D.1987), held a person arrested for driving under the influence of intoxicating liquor has a qualified statutory right to consult with an attorney before deciding whether to submit to a chemical test:

We hold that if an arrested person asks to consult with an attorney before deciding to take a chemical test, he must be given a reasonable opportunity to do so if it does not materially interfere with the administration of the test. If he is not given a reasonable opportunity to do so under the circumstances, his failure to take the test is not a refusal upon which to revoke his license under Chapter 39-20, N.D.C.C.

[¶ 9] As this Court stated in Kuntz, this right of an arrested person to have a reasonable opportunity to consult with an attorney before taking a chemical test is a statutory right based on N.D.C.C. § 29-05-20. 405 N.W.2d at 287. In subsequent cases this Court clarified that this limited right to consult with an attorney is derived solely from the statute, and not the state or federal constitutions. State v. Sadek, 552 N.W.2d 71, 73 (N.D.1996)(“The right to consult with an attorney before taking a chemical test is not derived from the state or federal constitutions, but from section 29-05-20, N.D.C.C.”); Mayo v. Moore, 527 N.W.2d 257, 261 (N.D.1995)(“This court has not held that an accused, arrested for driving under the influence, has a constitutional right to consult with counsel before deciding whether to submit to chemical testing.”); City of Mandan v. Jewett 517 N.W.2d 640, 641 (N.D.1994) (“This Court has never held that an accused, arrested for driving under the influence, has a constitutional right to counsel before deciding whether to submit to alcohol testing.”). (Emphasis in original). This Court has also clearly stated that this statutory right of an arrested person to consult with an attorney before taking a chemical test is a “limited” right and must be balanced against “the need for an accurate and timely chemical test.” Bickler v. North Dakota State Highway Comm’r, 423 N.W.2d 146,147 (N.D.1988).

[¶ 10] Section 29-05-20, N.D.C.C., explicitly defines this right as a right that attaches only after arrest.

Delay after arrest prohibited — -Attorney. The accused in all cases must be taken before a magistrate without unnecessary delay, and 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 (Emphasis added).

The term “arrest” is also defined in N.D.C.C. § 29-06-01. “Arrest defined. An arrest is the taking of a person into custody in the manner authorized by law to answer for the commission of an offense.” Leno was not under arrest at the time of his undisputed request to consult with his attorney.

[¶ 11] In this case, the district court expanded this limited statutory right to consult with an attorney, reasoning there was no distinction between pre-arrest and post-arrest. But, this right exists for a person once arrested for DUI prior to submitting to a post-arrest chemical test. The district court’s ruling transforms it into a right to counsel that attaches prior to arrest before submitting to an on-site screening test. This transformation is explained by the district court by analogy to Kuntz, an analogy that is flawed due to critical differences between Kuntz and this case. Leno was not under arrest at the time of the undisputed request to consult an attorney and the chemical test was not an ultimate evidentiary test, but rather, only an on-site screening test not admissible as evidence. N.D.C.C. § 39-20-14. See also City of Fargo v. Ruether, 490 N.W.2d 481, 483 (N.D.1992) Because Kuntz was premised on the statutory right to counsel after arrest prior to submitting to the ultimate evidentiary test, the differences between this case and Kuntz are more than mere factual distinctions. Rather, the differences go to the heart of the rationale for finding a limited statutory right initially. Here, these differences destroy the basis for extending the limited statutory right to counsel to attach prior to arrest.

[¶ 12] The first part of the rationale for establishing this limited statutory right for a person arrested for DUI to consult with an attorney prior to the chemical test was to alleviate the “strange circumstances” of the confusion specific to the implied consent situation. Kuntz at 287(quoting State v. Vietor, 261 N.W.2d 828, 831 (Iowa 1978)). The “strange circumstances” occur when an officer arrests a person for DUI, and then reads the Miranda warning which includes words of assurance of a right to counsel. Id. at 288. Immediately after the Miranda warning, the officer reads the implied consent advisory which requires consent or refusal without the opportunity to consult with an attorney. Id. We recognized our use of this rationale for finding a limited statutory right to counsel for a person arrested for DUI in Bickler v. North Dakota State Highway Commissioner, 423 N.W.2d 146, 147 (N.D.1988) by stating “[w]e believe that our holding in Kuntz eliminated the contradiction between the post-arrest Miranda assurance of a right to counsel, and the subsequent denial of access to an attorney’s advice on whether to take the chemical test.” This contradiction is unique to the post-arrest situation and did not arise in this ease.

[¶ 13] A second crucial difference between the facts in this case and Kuntz is the nature of the chemical test. In Kuntz, the driver was arrested and immediately faced a decision of whether or not to consent to the ultimate evidentiary chemical test, the intoxilyzer test. 405 N.W.2d at 286-87. The results of this chemical test are admissible as evidence. N.D.C.C. § 39-20-07. In sharp contrast, Leno asserts the right to counsel before submitting to the on-site screening test, a test conducted prior to arrest, the results of which are not admissible as evidence for the ultimate determination of the violation. N.D.C.C. § 39-20-14. See also City of Fargo v. Ruether 490 N.W.2d 481, 483 (N.D.1992) (stating the only permissible evidentiary use of the screening test is to aid in determining probable cause for ah arrest).

[¶ 14] It was pivotal to the majority’s analysis in Kuntz that the results of this test could later could be used to convict Kuntz of a crime. The majority referred to the chemical test as “vital evidence” in a later criminal trial. Kuntz, 405 N.W.2d at 288, (quoting State v. Vietor, 261 N.W.2d at 831). The purpose of the screening test in this case is not to provide admissible “vital evidence” but rather its sole purpose is to ensure sufficient probable cause exists to warrant an arrest. State v. Woytassek, 491 N.W.2d 709, 712 (N.D.1992). The statutory right to counsel exists after arrest prior to submitting to the ultimate evidentiary chemical test. The nature of this screening test does not provide a rationale for extending the current limited statutory right to counsel prior to arrest.

[¶ 15] The district court determined there is a need for due process protections prior to the on-site screening test since refusal of this test can deprive the driver of his license. However, refusal of the screening test can be cured by consenting to take the chemical test after arrest. N.D.C.C. § 39-20-14. Section 39-20-14 states “the director must not revoke a person’s driving privileges for refusing to submit to a screening test requested under this section if the person provides a sufficient breath, blood, or urine sample for a chemical test requested under section 39-20-01 for the same incident.” The majority in Kuntz also relied on the fundamental due process right because of the consequences of refusing the chemical test, in light of the implied consent law. Kuntz, 405 N.W.2d at 288. However, in Kuntz, the ultimate evidentiary test was admissible and refusal resulted in an administrative revocation of. the license. Id. Although Leno also faced a possibility.of his license being revoked if he refused the on-site screening test, his refusal of the initial on-site screening test was cured by his subsequent consent to the blood test. N.D.C.C. § 39-20-14. Under Kuntz he was entitled to a reasonable opportunity to consult with an attorney before taking the blood test. Since refusal of the on-site screening test does not result in an incurable revocation of Leno’s license, expanding the current post-arrest statutory right to counsel is not necessary to guarantee protections of due process.

[¶ 16] The district court also appeared to rely on State v. Fasching, 453 N.W.2d 761 (N.D.1990), to find a right to consult an attorney exists before arrest when the attorney is a passenger in the ear and to decide the remedy for violation of this right is exclusion of the blood test. However, this reliance is misplaced because we did not reach the question of whether or not a right to counsel existed in Fasching but disposed of that case on the basis of a failure to give the Miranda warning prior to custodial interrogation. Fasching, 453 N.W.2d at 761, 765.

[¶ 17] Some of the facts in Fasching are similar to this case. Fasching, like Leno, was driving erratically which prompted a police , officer to stop her car. Fasching, 453 N.W.2d at 761. The officer approached Fasching’s car, asked for her driver’s license, and suspected that Fasch-ing was under the influence of alcohol. Id. at 761-62. At this time, Fasching, like Leno, was accompanied by her attorney who was a passenger in the vehicle. Id. at 762. This is where the similarity ends. In Fasching, the officer then asked Fasching to get out of her car and sit in the patrol car. Id. When Fasching’s attorney tried to follow her to the patrol car the officer ordered her to wait in Fasching’s car, which she did. Id. Soon after, Fasching’s attorney approached the patrol car. She informed the officer she was Fasching’s attorney and wished to advise her, at which time the officer told the attorney to get back in Fasching’s car and locked the doors of the patrol car. Id. The officer then continued questioning Fasching. Id. The trial court found that upon being locked in a patrol car, after hearing the officer order her attorney to get back into her car, Fasching would have understood she was in custody and deprived of her freedom in a significant way. Id. In contrast, Leno remained outside in public view consistent with an ordinary traffic stop. As we stated in Fasching, “a person temporarily detained for an ‘ordinary traffic stop’ is not ‘in custody’ for the purposes of Miranda.” Fasching, 453 N.W.2d at 763.

[¶ 18] The issue in Fasching was whether custodial interrogation without a Miranda warning requires suppression of all evidence, testimonial and non-testimonial. Fasching, 453 N.W.2d at 761. We held only testimonial evidence must be suppressed, and therefore did not suppress the blood test results. Id. We did not reach Fasching’s argument she was denied her statutory and constitutional rights to counsel. Id. at 765. Despite the fact that both Fasching and this case present the uncommon situation of a driver being stopped for a traffic violation in the physical presence of the driver’s attorney, the dispositive issue in Fasching is unrelated to this case. Leno’s brief detention was not custodial interrogation, but rather was only a traffic stop which was temporary and conducted in public view. The United States Supreme Court has stated the “non-coercive aspect of ordinary traffic stops prompts us to hold that persons temporarily detained pursuant to such stops are not ‘in custody’ for the purposes of Miranda.” Pennsylvania v. Bruder, 488 U.S. 9, 10, 109 S.Ct. 205, 102 L.Ed.2d 172 (1988)(quoting Berkemer v. McCarty, 468 U.S. 420, 440, 104 S.Ct. 3138, 82 L.Ed.2d 317 (1984)). Leno’s undisputed request to consult an attorney was prior to arrest or custodial interrogation.

[¶ 19] Although it was not necessary for the officer to restrict Leno’s access to his attorney, we hold doing so did not violate Leno’s right to counsel because the statutory right to counsel does not attach until after arrest. We reverse the order suppressing the evidence for the reasons stated by the trial court, but we remand for a factual finding of whether or not Leno invoked his right to counsel after he was arrested and prior to consenting to the ultimate evidentiary chemical test.

[¶ 20] CAROL RONNING KAPSNER, MARY MUEHLEN MARING, WILLIAM A. NEUMANN, DALE V. SANDSTROM, JJ„ concur.