author: NEUMANN, Justice.

text:
    2004 ND 148
    Dustin Gene JOHNSON, Petitioner and Appellant, v. North Dakota DEPARTMENT OF TRANSPORTATION, Respondent and Appellee.
    No. 20040065.
    Supreme Court of North Dakota.
    July 22, 2004.

      Chad R. McCabe, Vinje Law Firm, Bismarck, N.D., for petitioner and appellant.
    Andrew Moraghan, Assistant Attorney General, Office of Attorney General, Bismarck, N.D., for respondent and appellee.
   NEUMANN, Justice.

[¶ 1] Dustin Johnson appealed from a district court judgment affirming an administrative hearing officer’s suspension of his driving privileges for one year. We hold Johnson’s blood test was conducted in accordance with the law, and we affirm.

I

[¶ 2] Officer Kelly Dollinger, a police officer with the city of Mandan, stopped Johnson for speeding in the city limits shortly after 10:00 p.m., on September 22, 2003. After speaking with Johnson, Dol-linger smelled alcohol and noticed that Johnson’s eyes were bloodshot. Dollinger conducted field sobriety tests and ultimately arrested Johnson for driving while under the influence of intoxicating alcohol. Dollinger read Johnson the implied consent advisory and asked Johnson to submit to a blood test. Johnson consented. Dol-linger drove Johnson to the Morton County Law Enforcement Center in Mandan for the blood test, but upon arrival discovered that a nurse would not be available to administer the test until after midnight. Dollinger then drove Johnson to St. Alexi-us Medical Center in Bismarck and asked a nurse there to withdraw blood from Johnson for the test. The results of the test showed that Johnson had a blood alcohol concentration of .09 percent.

[¶ 3] Johnson was notified by the North Dakota Department of Transportation of its intent to suspend his driving privileges, and he requested a hearing. Johnson argued that his blood test was not conducted in accordance with the law, as required under N.D.C.C. § 39-20-05(2), because Officer Dollinger was outside of his jurisdiction when he requested the hospital nurse to withdraw blood from Johnson for the test. The hearing officer concluded that a law enforcement officer may transport a person outside the officer’s primary jurisdiction for purposes of testing for blood alcohol concentration. On October 20, 2003, the Department’s hearing officer suspended Johnson’s license for one year.

[¶ 4] Johnson filed a timely notice of appeal from the administrative agency decision to the district court. In affirming the hearing officer’s decision, the district court concluded Dollinger had authority to transfer Johnson outside the officer’s jurisdiction for a chemical test. Judgment was entered on March 9, 2004 affirming the administrative hearing officer’s suspension of Johnson’s driving privileges.

II

[¶ 5] On appeal, the only issue raised by Johnson is whether his blood test was conducted in accordance with N.D.C.C. § 39-20-02, which provides, in relevant part:

Only an individual medically qualified to draw blood, acting at the request of a law enforcement officer, may withdraw blood for the purpose of determining the alcohol, drug, or combination thereof, content therein.

The Administrative Agencies Practice Act, N.D.C.C. ch. 28-32, governs our review of an administrative suspension of a driver’s license. Dettler v. Sprynczynatyk, 2004 ND 54, ¶ 10, 676 N.W.2d 799. This Court exercises a limited review in appeals involving driver’s license suspensions or revocations, and we affirm the agency’s decision unless:

1. The order is not in accordance with the law.
2. The order is in violation of the constitutional rights of the appellant.
3. The provisions of this chapter have not been complied with in the proceedings before the agency.
4. The rules or procedure of the agency have not afforded the appellant a fair hearing.
5. The findings of fact made by the agency are not supported by a preponderance of the evidence.
6. The conclusions of law and order of the agency are not supported by its findings of fact.
7. The findings of fact made by the agency do not sufficiently address the evidence presented to the agency by the appellant.
8. The conclusions of law and order of the agency do not sufficiently explain the agency’s rationale for not adopting any contrary recommendations by a hearing officer or an administrative law judge.

Dettler, at ¶ 10, 676 N.W.2d 799; N.D.C.C. § 28-32-46. When an appeal involves an interpretation of a statute, a legal question, this Court will affirm the agency’s order unless it finds the order is not in accordance with the law. Phipps v. N.D. Dep’t of Transp., 2002 ND 112, ¶ 7, 646 N.W.2d 704. The interpretation of a statute is a question of law, fully reviewable on appeal. State ex rel. Clayburgh v. American West Cmty. Promotions, Inc., 2002 ND 98, ¶ 7, 645 N.W.2d 196.

[¶ 6] Section 39-20-02, N.D.C.C., requires a medically qualified person to withdraw blood, for purposes of determining alcohol content, only “at the request of a law enforcement officer.” Johnson invites us to construe this statute as requiring Officer Dollinger to have been physically located within his territorial jurisdiction when requesting the medical person to withdraw Johnson’s blood. Johnson asserts that Dollinger, who was outside the Mandan city limits when he requested the nurse to withdraw blood, was not a “law enforcement officer” for purposes of requesting a blood test under the statute.

[¶ 7] Our primary goal of statutory construction is to ascertain the intent of the legislature. Gronfur v. N.D. Workers Comp. Fund, 2003 ND 42, ¶ 10, 658 N.W.2d 337. In ascertaining the legislature’s intent, we first look at the plain language of the statute and give every word of the statute its ordinary meaning. Id. Words used in a statute are to be understood in their ordinary sense, unless a contrary intention plainly appears. Id. We construe the statute as a whole and give effect to each of its provisions, if possible. American West, 2002 ND 98, ¶ 14, 645 N.W.2d 196.

[¶ 8] Under our criminal code, the term “law enforcement officer” is defined to mean “a public servant authorized by law or by a government agency or branch to enforce the law and to conduct or engage in investigations or prosecutions for violations of law.” N.D.C.C. § 12.1-01-04(17). It is undisputed that Dollinger is a law enforcement officer with the Man-dan Police Department. It is also undisputed that Dollinger was acting within his jurisdiction and authority as a law enforcement officer when he stopped Johnson for speeding in Mandan, conducted field sobriety tests at the location of the stop, arrested Johnson, read Johnson the implied advisory consent, and obtained Johnson’s explicit consent to have a blood alcohol test. Nevertheless, Johnson urges this Court to adopt a hypertechnical construction of N.D.C.C. § 39-20-02 that Dol-linger, under these circumstances, was not qualified to request a nurse in Bismarck to perform the blood test to which Johnson had given his consent while in Dolling-er’s territorial jurisdiction.

[¶ 9] There is no dispute that Dollinger is a law enforcement officer and that he was acting within his jurisdiction and with proper authority when he arrested Johnson and obtained Johnson’s consent to a blood test. Dollinger transferred Johnson to a Bismarck medical facility for purposes of having the blood test conducted only after learning that no medical person would be available to withdraw blood in Mandan until after midnight, beyond the two-hour testing window under the statute. N.D.C.C. § 39-20-07(3). The clear and unambiguous purpose of the statutory language “at the request of a law enforcement officer” is to enable medical personnel to withdraw blood only at the request of “a public servant authorized ... to engage in investigations ... for violations of law,” and not an ordinary citizen. We conclude that under these circumstances, Dollinger was a law enforcement officer within the legislative intent of the statute for the purpose of requesting the nurse in Bismarck to withdraw a blood sample from Johnson.

[¶ 10] This Court has recognized that as a general rule a police officer acting outside his jurisdiction is without official capacity and without official power to arrest. State v. Littlewind, 417 N.W.2d 361, 363 (N.D.1987). However, this case does not involve the authority of a law enforcement officer to make an arrest. Rather, the narrow issue here is whether, under N.D.C.C. § 39-20-02, an arresting officer, who has obtained explicit consent of a suspect to have his blood tested while the officer and suspect are located within the officer’s jurisdictional territory, can transfer the arrestee outside the jurisdiction for the test. The statute does not require the blood test either be offered or administered within the jurisdiction where the arrest took place. See Kelly v. S.C. Dep’t of Highways, 323 S.C. 334, 474 S.E.2d 443, 445 (1996) (where statute did not require test be administered within jurisdiction where the arrest took place, the arresting officer retained custody to transport arres-tee outside the jurisdiction for purposes of administering Breathalyzer test). We conclude that, under these circumstances, Dol-linger did have authority under the statute to request performance of the test in Bismarck. This interpretation is consistent with case law of other jurisdictions recognizing that this type of evidence gathering activity by a law enforcement officer is not limited to the officer’s territorial jurisdiction. See State v. Stevens, 224 Conn. 730, 620 A.2d 789, 795 (1993); Benolkin v. Comm’r of Public Safety, 408 N.W.2d 710, 712 (Minn.Ct.App.1987); State v. Wagner, 359 N.W.2d 487, 490 (Iowa 1984); State v. MacDonald, 260 N.W.2d 626, 628 (S.D.1977).

[¶ 11] Johnson relies upon this Court’s decision in Davis v. Dir., N.D. Dep’t of Tramp., 467 N.W.2d 420, 423 (N.D.1991), to support his argument that under N.D.C.C. § 39-20-02 a law enforcement officer’s request of a medical person to withdraw blood must be made within the officer’s jurisdiction. In Davis this Court concluded that a state police officer who arrested an enrolled member of the Turtle Mountain Band of Chippewa Indians off the reservation for a crime committed off the reservation did not have authority, after transporting the Indian arrestee to the reservation, to ask the arrestee to take a chemical test off the reservation. We held in Davis that the Indian arrestee’s rejection of the test, in response to the officer’s unauthorized request that he do so, did not constitute a refusal upon which his driving privileges could be automatically revoked under N.D.C.C. § 39-20-01. Davis, at 422.

[¶ 12] The issue and facts in Davis are substantially different from the issue and facts before us in this appeal. In Davis the arrestee’s refusal to take a blood alcohol test had the direct consequence of the arrestee’s driving privileges being suspended for an extended period of time. Because the officer was outside his jurisdiction when he requested the arrestee to submit to testing, the request was unauthorized and the arrestee’s rejection could not, therefore, constitute a refusal for purposes of automatic license suspension. In this case, the issue is whether an officer may request medical personnel to conduct a chemical test outside the officer’s jurisdiction after the officer has obtained, within the officer’s jurisdiction, the arrestee’s consent to take the test. Only a hyper-technical interpretation of N.D.C.C. § 39-20-02 would require the test itself be conducted within the officer’s jurisdiction. Davis did not involve an interpretation of N.D.C.C. § 39-20-02 and our decision in Davis does not require interpretation of that statute as proposed by Johnson.

Ill

[¶ 13] We hold that under N.D.C.C. § 39-20-02 a law enforcement officer who effectuates a proper arrest and consent of the suspect to take, a blood test within the officer’s territorial jurisdiction can, while outside the officer’s jurisdiction, request a qualified medical person to conduct the test. We further hold that Johnson’s blood test was conducted in accordance with the statutory requirements and his driving privileges were suspended in accordance with the law. We, therefore, affirm the district court judgment upholding the administrative hearing officer’s one-year suspension of Johnson’s driving privileges.

[¶ 14] GERALD W. VANDE WALLE, C.J., MARY MUEHLEN MARING, CAROL RONNING KAPSNER, and DALE V. SANDSTROM, JJ., concur.


source: Caselaw Access Project

license: Public Domain

text:
    2004 ND 152
    Ronald R. ERNST, Petitioner and Appellant v. STATE of North Dakota, Respondent and Appellee.
    No. 20030330.
    Supreme Court of North Dakota.
    July 22, 2004.
    Rehearing Denied Aug. 31, 2004.

      Monty G. Mertz, Fargo, N.D., for petitioner and appellant; submitted on brief.
    Trent W. Mahler, Assistant State’s Attorney, Fargo, N.D., for respondent and appellee; submitted on brief.
   NEUMANN, Justice.

[¶ 1] Ronald R. Ernst appeals from the trial court’s judgment dismissing his application for post-conviction relief. On appeal, Ernst argues the trial court erred in finding he failed to prove his claims of ineffective assistance of counsel. We affirm.

I

[¶ 2] On October 28, 2002, Ernst pled guilty to burglary, stalking, two counts of theft of property, disorderly conduct, criminal mischief, and indecent exposure. The charges resulted, in part, from a search of Ernst’s home in Richfield, Minnesota, conducted by Minnesota police officers executing a Minnesota search warrant authorized by a Minnesota judge. At sentencing, the State recommended five years’ imprisonment with two years suspended. After informing Ernst that the State’s recommendation was nonbinding, the trial court sentenced him to eight years’ imprisonment, with three years suspended for the first six charges. The court also sentenced Ernst to one additional year of imprisonment for the indecent exposure charge.

[¶ 3] Ernst applied for post-conviction relief on January 10, 2003, claiming his guilty plea was involuntary because he had received ineffective assistance of counsel. In his application, Ernst asked to withdraw his guilty plea and proceed anew, or, alternatively, requested the trial court to sentence him to eight years’ probation and require him to attend and complete a sex offender treatment program and pay restitution and probation fees.

[¶ 4] After holding an evidentiary hearing, the trial court found Ernst failed to provide sufficient evidence to substantiate his claims of ineffective assistance of counsel. The trial court dismissed Ernst’s application for post-conviction relief.

II

[¶ 5] Ernst argues the trial court’s finding he failed to provide sufficient evidence to support his claim of ineffective assistance of counsel is clearly erroneous. Ernst asserts his guilty plea was involuntary as a result of ineffective assistance of counsel and the outcome clearly would have been different with effective counsel. According to Ernst, his counsel was ineffective because (1) his attorney erroneously failed to move to suppress evidence, (2) he misunderstood the consequences of his guilty plea, (3) his attorney coerced him into accepting the guilty plea by erroneously advising Ernst of the potential maximum sentence he could receive, and (4) the evidence against Ernst was circumstantial.

[¶ 6] The petitioner for post-conviction relief has the burden of establishing a basis for relief. Berlin v. State, 2000 ND 206, ¶ 7, 619 N.W.2d 623. As we held in Garcia v. State, 2004 ND 81, ¶ 6, 678 N.W.2d 568 (citation omitted):

Post-conviction relief proceedings are civil in nature and are governed by the North Dakota Rules of Civil Procedure. The issue of ineffective assistance of counsel is a mixed question of law and fact which is fully reviewable by this court. However, a trial court’s findings of fact in actions for post-conviction relief will not be disturbed unless clearly erroneous, pursuant to N.D.R.Civ.P. 52(a).

“A finding of fact is clearly erroneous if, although there may be some evidence to support it, the reviewing court on the entire evidence, is left with a definite and firm conviction a mistake has been made.” State v. Causer, 2004 ND 75, ¶ 31, 678 N.W.2d 552.

[¶ 7] “A defendant may not withdraw an accepted guilty plea unless withdrawal is necessary to correct a manifest injustice, and a defendant who pleads guilty upon the advice of counsel may only attack the voluntary and intelligent character of the guilty plea.” McMorrow v. State, 2003 ND 134, ¶ 5, 667 N.W.2d 577 (citation omitted). When determining the validity of a guilty plea, “[t]he longstanding test ... is ‘whether the plea represents a voluntary and intelligent choice among the alternative courses of action open to the defendant.’ ” Houle v. State, 482 N.W.2d 24, 26 (N.D.1992) (quoting Hill v. Lockhart, 474 U.S. 52, 56, 106 S.Ct. 366, 88 L.Ed.2d 203 (1985)). When counsel represents the defendant during a plea process and the defendant relies on counsel’s advice when entering his plea, “the voluntariness of the plea depends on whether counsel’s advice ‘was within the range of competence demanded of attorneys in criminal cases.’ ” Hill, at 56, 106 S.Ct. 366 (quoting McMann v. Richard son, 397 U.S. 759, 771, 90 S.Ct. 1441, 25 L.Ed.2d 763 (1970)).

[¶ 8] “The Sixth Amendment of the United States Constitution, made applicable to the states through the Fourteenth Amendment, and Article I, § 12 of the North Dakota Constitution guarantee a criminal defendant effective assistance of counsel.” Garcia, 2004 ND 81, ¶ 5, 678 N.W.2d 568. A defendant has a fundamental right to counsel during all critical stages of the prosecution, under the Sixth Amendment. See, e.g., Iowa v. Tovar, — U.S. —,—, 124 S.Ct. 1379, 1383, 158 L.Ed.2d 209 (2004). “The entry of a guilty plea, whether to a misdemeanor or a felony charge, ranks as a ‘critical stage’ at which the right to counsel adheres.” Id.

[¶ 9] “Trial counsel’s conduct is presumed to be reasonable and courts consciously attempt to limit the distorting effect of hindsight.” Garcia, 2004 ND 81, ¶ 5, 678 N.W.2d 568. The petitioner has the heavy and demanding burden of proving the counsel’s assistance was ineffective and must specify how the counsel was deficient and specify the probable different result. McMorrow, 2003 ND 134, ¶ 10, 667 N.W.2d 577. A petitioner will not succeed on an ineffective assistance of counsel claim unless he proves counsel’s performance was so deficient as to fall below an objective standard of reasonableness and the deficient performance was prejudicial. Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984); Garcia, 2004 ND 81, ¶ 5, 678 N.W.2d 568. Generally, to meet the prejudice prong of the Strickland test, the defendant must “establish a reasonable probability that, but for his counsel’s errors, the result of the proceeding would have been different.” Syvertson v. State, 2000 ND 185, ¶ 22, 620 N.W.2d 362.

[¶ 10] In Hill v. Lockhart, 474 U.S. at 58, 106 S.Ct. 366, the United States Supreme Court applied the two-part Strickland test to challenges of guilty pleas based on ineffective assistance of counsel. Within the context of guilty pleas, the first prong of Strickland remains the same. Id. The defendant must show counsel’s performance was deficient. See id. However, to satisfy the second prong of the test, “the defendant must show that there is a reasonable probability that, but for counsel’s errors, he would not have pleaded guilty and would have insisted on going to trial.” Id. at 59, 106 S.Ct. 366; Abdi v. State, 2000 ND 64, ¶ 29, 608 N.W.2d 292.

1.

Motion to Suppress

[¶ 11] Ernst contends he received ineffective assistance of counsel based on his attorney’s failure to challenge the warrant search of his Minnesota home, the fruits of which led to several charges against him. According to Ernst, counsel “could have filed a motion to suppress, the outcome of which is unknown.” Failure to file pretrial motions, by itself, does not equate to ineffective assistance of counsel. See State v. Kroeplin, 266 N.W.2d 537, 542 (N.D.1978) (holding, “[d]efendant’s counsel on appeal claims that defendant’s court-appointed counsel at trial initiated no pretrial discovery or motions.... However, defendant’s counsel ... has neither alleged nor established specifically the area in which no preparation was made or how the lack of preparation, if any, prejudiced defendant’s case.”).

[¶ 12] Ernst has failed to demonstrate any legal theory that would require suppression of the evidence obtained during the Minnesota search, nor has he established that, had counsel moved to suppress, a reasonable probability exists that he would not have pled guilty. See Mathre v. State, 2000 ND 201, ¶ 3, 619 N.W.2d 627 (holding, “the defendant must demonstrate with specificity how and where trial counsel was incompetent and the probable different result”). According to Ernst, the outcome of such a motion is ‘unknown.’ “Ineffective-assistanee-of-counsel claims for counsel’s failure to move to suppress evidence at a suppression motion hearing must be premised on actual, not possible, prejudice to the defendant.” Damron v. State, 2003 ND 102, ¶ 18, 663 N.W.2d 650. The trial court did not err in finding Ernst did not meet his burden to establish counsel was ineffective for failing to move to suppress the evidence.

2.

Consequences of Guilty Plea

[¶ 13] Ernst contends he received ineffective assistance of counsel because he misunderstood the consequences of his guilty plea. However, a review of the record negates any claims that Ernst misunderstood the consequences of his guilty plea. During the sentencing hearing, the trial court thoroughly engaged Ernst in a colloquey during which the trial court ascertained that Ernst understood the potential length of his sentence, the nonbinding nature of the State’s sentencing recommendation, his right to plead not guilty, and admitted no other promises or representations had been made concerning his guilty plea. In this colloquey, Ernst also admitted he was satisfied with his attorney’s representation.

The Court: Mr. Ernst, I’m gonna ask you some questions and have you answer them out loud.... Now, they apply to all these counts except where I indicate otherwise. Okay.
[Ernst]: Yes.
The Court: Did you hear and understand the constitutional rights that the Court read you on an earlier date?
[Ernst]: Yes, I did.
The Court: Do you understand the nature of these charges, burglary, stalking, theft of property, I think another count of theft of property, disorderly conduct, criminal mischief and indecent exposure?
[Ernst]: Yes, I did.
The Court: And you understand, sir, you have the right to plead guilty or not guilty to these charges as you wish?
[Ernst]: Yes.
The Court: Okay. All right. And have you or your attorney had any conversations ... with the State’s Attorney’s office regarding recommendations or plea bargains?
[Counsel]: We are aware of the State’s recommendation, Your Honor.
The Court: Okay. You understand, sir, that a recommendation is just that and I do not have to follow a recommendation?
[Ernst]: Yes, I do.
The Court: Okay. You understand if you plead guilty that you will be waiving your right to any trial proceedings of any kind and also your right to cross-examine those witnesses who would have taken that stand and testified against you if you had gone to trial?
[Ernst]: Yes.
The Court: Has anybody promised you anything else or threatened you in any way or attempted to use force against you to get you to enter a guilty plea here today?
[Ernst]: No.
The Court: And are you satisfied with your attorney’s representation to this point in the proceedings?
[Ernst]: Yes.

[¶ 14] Based on this record, Ernst has not shown that he misunderstood the consequences of a guilty plea.

3.

Coercion

[¶ 15] Ernst contends he was coerced by his attorney’s erroneous advice that, if found guilty of all charges, he could receive more than 14 years’ imprisonment. There is no testimony, other than Ernst’s own statements, showing Ernst received such advice. In addition, Ernst fails to demonstrate how this potential sentence is legally incorrect. On appeal, we “will only decide issues that have been thoroughly briefed and argued.” State v. Backlund, 2003 ND 184, ¶ 38, 672 N.W.2d 431. The trial court did not err in failing to find counsel provided ineffective assistance with regard to informing him of the potential maximum sentence.

4.

Circumstantial Evidence

[¶ 16] Ernst contends the evidence against him was circumstantial, and he could have prevailed at trial. Ernst fails, in any way, to show how this fact, if it is a fact, manifested itself as advice from his attorney that influenced his decision to plead guilty. On appeal, this Court “will only decide issues that have been thoroughly briefed and argued.” Backlund, 2003 ND 184, ¶38, 672 N.W.2d 431. Therefore, Ernst’s argument is without merit.

Ill

[¶ 17] The trial court did not err in dismissing Ernst’s petition for post-conviction relief based on its finding Ernst failed to provide sufficient evidence to substantiate his claims of ineffective assistance of counsel. We affirm.

[¶ 18] GERALD W. VANDE WALLE, C.J., MARY MUEHLEN MARING, CAROL RONNING KAPSNER, and DALE V. SANDSTROM, JJ., concur.


author: VANDE WALLE, Chief Justice.

text:
    2004 ND 151
    STATE of North Dakota, Plaintiff and Appellee v. Lance Joseph BERGER, Defendant and Appellant.
    No. 20030322.
    Supreme Court of North Dakota.
    July 22, 2004.

      Brian David Grosinger, Assistant State’s Attorney, Mandan, N.D., for plaintiff and appellee.
    Ralph A. Vinje, Vinje Law Firm, Bismarck, N.D., for defendant and appellant.
   VANDE WALLE, Chief Justice.

[¶ 1] Lance Berger appealed from an order deferring imposition of sentence upon a jury verdict finding him guilty of possession of drug paraphernalia. We affirm, concluding the officer had probable cause to arrest Berger and the subsequent search incident to arrest was valid.

I

[¶ 2] On the evening of November 30, 2002, Officer Vanderhoef of the Mandan Police Department was following a van driven by Lance Berger on Main Street in Mandan. Officer Vanderhoef noticed Berger was tailgating the vehicle in front of him, and Berger’s van almost struck the vehicle as it turned off onto a side street. Officer Vanderhoef then noticed Berger’s van weaving within its lane, and crossing over and straddling the yellow line dividing the traffic lane from the turning lane. At that point, Officer Vanderhoef activated his overhead lights and stopped Berger’s vehicle.

[¶ 3] Berger greeted Officer Vander-hoef with profanity and became verbally abusive. Sergeant Flanagan of the Man-dan Police Department arrived to assist, and Berger became more belligerent. Officer Vanderhoef testified Berger “became very, very aggressive with Sergeant Flanagan and myself, such that Lance and Sergeant Flanagan were chest-to-chest, and Lance was kind of bucking his chest against [Sergeant Flanagan’s], and I had to ask Lance to calm down and separate him from the vehicle.”

[¶ 4] Officer Vanderhoef also testified Berger could not stand still, he paced back and forth, he was very nervous, and his whole body was shaking. Officer Vander-hoef decided to administer field sobriety tests and Berger passed the one-legged stand test. On the horizontal gaze nystag-mus (“HGN”) test, Berger exhibited two “clues” of nystagmus. Officer Vanderhoef testified that, during the HGN test, Berger “was shaking, just very, very hard shaking, his whole body, all the way down to his feet,” and “I had to ask him on several occasions to try to remain as still as possible so that we could do the test.”

[¶ 5] Officer Vanderhoef then performed a light reactivity test, which measures the eye’s reaction to light. Officer Vanderhoef testified he noticed before the test that Berger’s eyes were glossed over, watery, and fully dilated. When light was shined into Berger’s eyes his pupils reacted “very, very slowly,” “you couldn’t even tell that they had reacted at all,” and “[t]hey stayed virtually fully dilated.”

[¶ 6] Officer Vanderhoef arrested Berger for driving under the influence of drugs. A subsequent search incident to arrest produced a digital scale, pen tube, tinfoil, spoon, and glass vial with methamphetamine residue.

[¶ 7] Berger was charged with possession of drug paraphernalia. Berger moved to suppress all evidence found during the traffic stop, arguing there was not probable cause for his arrest. The trial court denied the motion, concluding Berger’s behavior, Berger’s driving, the field tests, and the officer’s training supported a determination of probable cause to believe Berger was driving under the influence of a controlled substance. A jury returned a verdict of guilty, and the trial court entered an order deferring imposition of sentence.

II

[¶ 8] Berger’s notice of appeal states that he appeals from the order deferring imposition of sentence. An order deferring imposition of sentence is not listed as an appealable order in N.D.C.C. § 29-28-06. Where no separate judgment of conviction has been entered and the order deferring imposition of sentence complies with the requirements of N.D.R.Crim.P. 32(b) for criminal judgments, the order serves as the judgment of conviction and is appealable. State v. Trosen, 547 N.W.2d 735, 737 n. 1 (N.D.1996). The order in this case satisfies the requirements of N.D.R.Crim.P. 32(b) and no separate judgment of conviction was entered. Therefore, the order deferring imposition of sentence serves as the judgment and the appeal is properly before us.

Ill

[¶ 9] The sole question presented on appeal is whether Officer Vanderhoef had probable cause to arrest Berger for driving under the influence.

[¶ 10] We have outlined our standard of review for the denial of a suppression motion:

“[W]e defer to the district court’s findings of fact and resolve conflicts in testimony in favor of affirmance. We affirm the district court’s decision unless, after resolving conflicting evidence in favor of affirmance, we conclude there is insufficient competent evidence to support the decision, or unless the decision goes against the manifest weight of the evidence. That standard of review recognizes the importance of the trial court’s opportunity to observe the witnesses and assess their credibility, and we accord great deference to its decision in suppression matters. Questions of law are fully renewable.”

State v. Bergstrom, 2004 ND 48, ¶ 10, 676 N.W.2d 83 (quoting State v. Matthews, 2003 ND 108, ¶ 8, 665 N.W.2d 28).

[¶ 11] When determining whether an officer had probable cause to arrest, we review the facts and circumstances known by the officer and apply a totality-of-the-circumstances standard:

The term “reasonable grounds” is synonymous with the term “probable cause.” See Henderson v. Director, North Dakota Dep’t of Transp., 2002 ND 44, ¶ 8, 640 N.W.2d 714. “Probable cause to arrest exists when the facts and circumstances within police officers’ knowledge and of which they have reasonably trustworthy information are sufficient to warrant a person of reasonable caution in believing an offense has been or is being committed.” Id. (quoting Fargo v. Egeberg, 2000 ND 159, ¶ 8, 615 N.W.2d 542). When making a probable cause determination, we consider the totality of the circumstances. Whether probable cause exists is a question of law, fully reviewable on appeal.

Sonsthagen v. Sprynczynatyk, 2003 ND 90, ¶ 17, 663 N.W.2d 161 (citations omitted). To establish probable cause, the officer does not have to possess knowledge of facts sufficient to establish guilt; all that is necessary is knowledge that would furnish a prudent person with reasonable grounds for believing a violation has occurred. State v. Waltz, 2003 ND 197, ¶10, 672 N.W.2d 457; Obrigewitch v. Director, N.D. Dep’t of Transp., 2002 ND 177, ¶ 10, 653 N.W.2d 73. Even though conduct may have an innocent explanation, “probable cause is the sum total of layers of information and the synthesis of what the police have heard, what they know, and what they observed as trained officers.” Waltz, at ¶ 13, 672 N.W.2d 457 (quoting State v. Ringquist, 433 N.W.2d 207, 215 (N.D.1988)).

[¶ 12] In determining what is necessary to establish probable cause to arrest a driver for driving while under the influence of drugs, we are guided by cases evaluating what is necessary to arrest a driver for driving while under the influence of alcohol. Waltz, 2003 ND 197, ¶ 11, 672 N.W.2d 457; Sonsthagen, 2003 ND 90, ¶ 19, 663 N.W.2d 161. In Sonsthagen, we discussed at length the appropriate standard for evaluating probable cause to arrest for driving under the influence of drugs, and applied a two-part test:

When looking at N.D.C.C. § 39-08-01, the specific language of subsection (l)(c) suggests application of a similar two-part test to arrest for driving while under the influence of drugs. First, the statute requires the driver be incapable of safely driving; second, it requires the person be under the influence of drugs. We, therefore, conclude that for the officer in this case to have probable cause to arrest Sonsthagen for driving under the influence of drugs, the officer must: 1) observe some signs of physical or mental impairment; and 2) have reason to believe Sonsthageris impairment is caused by drugs.

Sonsthagen, at ¶20, 663 N.W.2d 161. We also noted the showing required to establish that a driver was sufficiently “under the influence” of alcohol or drugs to satisfy the “impairment” prong of the two part test:

“The expression ‘under the influence of intoxicating liquor’ simply means having drunk enough to disturb the action of the physical or mental faculties so that they are no longer in their natural or normal condition; that therefore, when a person is so affected by intoxicating liquor as not to possess that clearness of intellect and control of himself that he would otherwise have, he is ‘under the influence of intoxicating liquor’ and this is the common and well-known understanding of the expression.”

Sonsthagen, at ¶ 19, 663 N.W.2d 161 (quoting State v. Salhus, 220 N.W.2d 852, 856 (N.D.1974)).

[¶ 13] There are several facts in the record which demonstrate that Berger’s physical and mental faculties were “no longer in their natural or normal condition” and that Berger did not “possess that clearness of intellect and control of himself that he would otherwise have.” Id.

[¶ 14] Officer Vanderhoef testified that when he first noticed Berger’s van it was “tailgating pretty hard the vehicle in front of it,” and when the vehicle turned off onto a side street the van “was right on top of him” and “it looked like he was going to hit him as the car turned.” Berger’s van was weaving in his lane and was crossing over and straddling the yellow line separating the driving lane from the turning lane. Erratic driving, including veering, weaving, crossing the line of the driving lane, and nearly striking another vehicle, is a factor indicative of impairment which may be relevant in determining whether probable cause exists to arrest for driving under the influence of alcohol or drugs. See Sonsthagen, 2003 ND 90, ¶ 21, 663 N.W.2d 161; Baer v. Director, N.D. Dep’t of Transp., 1997 ND 222, ¶ 13, 571 N.W.2d 829; Chadwick v. Moore, 551 N.W.2d 783, 785-86 (N.D.1996); Moran v. North Dakota Dep’t of Transp., 543 N.W.2d 767, 770 (N.D.1996).

[¶ 15] Officer Vanderhoef further testified Berger was belligerent, physically aggressive, and repeatedly used profanity toward the officers. Berger was “bucking his chest” against Sergeant Flanagan, and Officer Vanderhoef had to move Berger away and ask him to calm down. Belligerent, aggressive, and abusive conduct, and use of profanity, are relevant factors indicative of impairment. See State v. Stewart, 2002 ND 102, ¶¶ 17-22, 646 N.W.2d 712; Chadwick, 551 N.W.2d at 786-87.

[¶ 16] Throughout the traffic stop Berger was shaking, was pacing back and forth, and could not keep still, even when Officer Vanderhoef attempted to perform field sobriety tests. Officer Van-derhoef testified Berger’s whole body, down to his feet, was shaking “very, very hard,” and Berger was “very nervous.” Unusual nervousness and severe shaking indicate the person’s physical faculties are not in their normal state and the person does not have normal control of himself, see Sonsthagen, 2003 ND 90, ¶ 19, 663 N.W.2d 161, and are relevant factors in assessing probable cause to arrest. See State v. Fields, 2003 ND 81, ¶ 19, 662 N.W.2d 242; State v. Arntz, 286 N.W.2d 478, 480 (N.D.1979).

[¶ 17] Officer Vanderhoef also testified Berger’s eyes “were very glossed over, appeared quite watery, and his pupils were fully dilated.” Glossy or watery eyes are indicative of impairment, and may be a relevant factor in determining probable cause to arrest for driving under the influence of drugs. See Sonsthagen, 2003 ND 90, ¶ 24, 663 N.W.2d 161; Baer, 1997 ND 222, ¶ 13, 571 N.W.2d 829.

[¶ 18] Officer Vanderhoef also performed field sobriety tests on Berger, and Berger failed the light reactivity test. Officer Vanderhoef testified he had received training on the light reactivity test at the Law Enforcement Training Center in Devils Lake. He explained the light reactivity test:

Light reactivity test is another tool that we use in determining whether or not to establish probable cause to make arrests for driving under the influence of alcohol and/or drugs. Typically, if somebody is not impaired, their pupils are going to react equally to light such that if I took a flashlight on my own eyes, my pupils would be somewhat larger dilation without the lights directly in my eyes. They would become more pinpoint as the light was focused in the eye. That would be a normal reactivity.

Officer Vanderhoef testified he was taught during his training that an eye reacting slowly to light can be a sign of use of controlled substances. Officer Vanderhoef testified that Berger’s pupils “reacted very, very slowly, almost to the point where you couldn’t even tell that they had reacted at all,” and “[t]hey stayed virtually fully dilated.” Failing a field sobriety test is a relevant factor in determining whether the officer had probable cause to arrest for driving under the influence of drugs or alcohol. Waltz, 2003 ND 197, ¶ 14, 672 N.W.2d 457; Sonsthagen, 2003 ND 90, ¶ 22, 663 N.W.2d 161; Kahl v. Director, N.D. Dep’t of Transp., 1997 ND 147, ¶ 17, 567 N.W.2d 197; McNamara v. Director of N.D. Dep’t of Transp., 500 N.W.2d 585, 588 (N.D.1993).

[¶ 19] Office Vanderhoef did not notice an odor of alcohol emanating from Berger. When a driver exhibits a significant level of impairment and alcohol usage has been tentatively eliminated as the cause of the impairment, it is reasonable to conclude the driver is under the influence of drugs or another substance. Waltz, 2003 ND 197, ¶ 15, 672 N.W.2d 457.

[¶ 20] We conclude these facts and circumstances, considered in totality in light of the officer’s training and experience, created probable cause to believe Berger was driving under the influence of drugs. Although each factor individually might be insufficient to establish probable cause, their cumulative effect is sufficient. See Baer, 1997 ND 222, ¶ 13, 571 N.W.2d 829; Moran, 543 N.W.2d at 770. Officer Van-derhoef observed signs of physical or mental impairment, and had reason to believe Berger’s impairment was caused by drugs. See Sonsthagen, 2003 ND 90, ¶20, 663 N.W.2d 161. Accordingly, we conclude the trial court did not err in determining there was probable cause for the arrest and in denying the motion to suppress evidence discovered during the search incident to arrest.

[¶ 21] The order deferring imposition of sentence is affirmed.

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

      . We explained the HGN test at length in City of Fargo v. McLaughlin, 512 N.W.2d 700, 703-08 (N.D.1994). The HGN test measures six signs of intoxication, or "clues,” three in each eye. Id. at 704. According to the National Highway Traffic Safety Administration, a score of 4 or more clues is indicative of a blood alcohol content of greater than .10. Id. (quoting State v. Witte, 251 Kan. 313, 836 P.2d 1110, 1113 (1992)); see also Compton v. State, 120 S.W.3d 375, 377 (Tex.App.2003); 2 Donald H. Nichols & Flem K. Whited III, Drinking/Driving Litigation § 17.1 (2d ed.1998). The State does not rely upon the HGN test to support its argument that there was probable cause to arrest Berger for driving under the influence.


author: KAPSNER, Justice. MARING, Justice,

text:
    2004 ND 147
    NATIONWIDE MUTUAL INSURANCE COMPANIES, Plaintiff and Appellee v. Victor LAGODINSKI, Defendant and Appellant.
    No. 20030334.
    Supreme Court of North Dakota.
    July 22, 2004.

      Troy A. Wolf, Smith Bakke Oppegard Porsborg & Wolf, Moorhead, MN, for plaintiff and appellee.
    Duane A. Lillehaug, Fargo, ND, for defendant and appellant.
   KAPSNER, Justice.

[¶ 1] Victor Lagodinski appeals from summary judgment granting declaratory relief to Allied Mutual Insurance Company, now known as Nationwide Mutual Insurance Company (“Nationwide”). We affirm.

I.

[¶ 2] Lagodinski lives and farms in La-Moure County. As a part of the farming operation, Lagodinski employed Grant Eleven as a seasonal employee. On May 22, 2000, Eleven was transporting water and chemicals from Lagodinski’s farmstead to a field in a 1970 Eenworth semi-tractor/trailer owned by Lagodinski. The Eenworth was being used to transport water and chemicals between the farmstead and fields on a public highway. The Een-worth was not registered as a motor vehicle nor was it insured. As Eleven turned onto Highway 13, he struck a motorcycle traveling eastbound driven by Lucas Elett-ke. Elettke sustained bodily injury including a concussion and broken leg. Elettke filed suit against Lagodinski alleging negligence under respondeat superior.

[¶ 3] Lagodinski asserts the incident should be covered under a farm policy issued to him by Nationwide. Lagodinski argues the farm policy should cover the incident because the policy provides coverage for occurrences arising out of the farm operation. The policy does not provide liability coverage for bodily injuries arising out of the use of a motor vehicle, unless the vehicle is not subject to motor vehicle registration because it is used exclusively for farm purposes. Lagodinski argues the Eenworth was adapted to be used solely for farm purposes; thus, the terms of the policy should be construed to provide coverage.

[¶ 4] Lagodinski argues the semi was not required to be registered as a motor vehicle because it was not driven outside of the farmstead until the day of the accident. At the time of the accident, nineteen of Lagodinski’s motor vehicles were insured under a policy issued by Farmers’ Insurance Group; however, the Eenworth involved in the accident was not listed on the motor vehicle policy.

[¶ 5] Nationwide argues the terms of the policy do not provide coverage for Elettke’s claims against Lagodinski; Nationwide asserts the plain language of the policy does not provide coverage for the Eenworth because it was subject to motor vehicle registration under North Dakota statute.

II.

[¶ 6] This Court stated its review of summary judgment in Ritter, Laber & Assocs. v. Koch Oil, Inc., 2004 ND 117, ¶ 7, 680 N.W.2d 634.

We review this appeal under our standards for summary judgment, which is a procedure for promptly resolving an action on the merits without a trial if there are no disputed issues of material fact or inferences to be drawn from undisputed facts and if a party is entitled to judgment as a matter of law. Bender v. Aviko, 2002 ND 13, ¶4, 638 N.W.2d 545. Whether a trial court properly grants summary judgment is a question of law, which we review de novo on the entire record. Fetch v. Quam, 2001 ND 48, ¶ 8, 623 N.W.2d 357. A party seeking summary judgment bears the initial burden of showing there are no genuine disputes regarding the existence of material facts. Id. at ¶ 9. On appeal, we view the evidence in the light most favorable to the party opposing the motion. Id. at ¶ 8.

[¶ 7] This Court reviews declaratory judgment actions under the same standards as other cases. N.D.C.C. § 32-23-07; see also Hanneman v. Continental Western Ins. Co., 1998 ND 46, ¶ 19, 575 N.W.2d 445 (citing American Hardware Mut. Ins. Co. v. Dairyland Ins. Co., 304 N.W.2d 687, 689 (N.D.1981)). “Interpretation of an insurance contract is a question of law, fully reviewable on appeal.” Hanneman, at ¶20 (citing Nodak Mut. Ins. Co. v. Heim, 1997 ND 36, ¶ 12, 559 N.W.2d 846). This case “involves the legal effect of a contract term, on appeal we fully review the issues by independently examining the insurance policy to determine if there is coverage.” Hanneman, at ¶ 19 (citing Martin v. Allianz Life Ins. Co. of North America, 1998 ND 8, ¶ 9, 573 N.W.2d 823 (1998)).

[¶ 8] In Ziegelmann v. TMG Life Ins. Co., 2000 ND 55, ¶ 6, 607 N.W.2d 898 (citations omitted), this Court summarized our standards for construing an insurance policy:

Our goal when interpreting insurance policies, as when construing other contracts, is to give effect to the mutual intention of the parties as it existed at the time of contracting. We look first to the language of the insurance contract, and if the policy language is clear on its face, there is no room for construction. “If coverage hinges on an undefined term, we apply the plain, ordinary meaning of the term in interpreting the contract.” While we regard insurance policies as adhesion contracts and resolve ambiguities in favor of the insured, we will not rewrite a contract to impose liability on an insurer if the policy unambiguously precludes coverage. We will not strain the definition of an undefined term to provide coverage for the insured. We construe insurance contracts as a whole to give meaning and effect to each clause, if possible. The whole of a contract is to be taken together to give effect to every part, and each clause is to help interpret the others.

[¶ 9] “Exclusions from coverage in an insurance policy must be clear and explicit and are strictly construed against the insurer.” Grinnell Mut. Reinsurance Co. v. Center Mut. Ins. Co., 2003 ND 50, ¶ 10, 658 N.W.2d 363 (citing Western Nat’l Mut. Ins. Co. v. Univ. of North Dakota, 2002 ND 63, ¶ 7, 643 N.W.2d 4). Although this Court construes exclusionary provisions strictly, we do not automatically construe every insurance exclusion provision against an insurer and in favor of coverage for the insured. This Court will not rewrite a contract to impose liability on an insurer if the policy unambiguously precludes coverage. Northwest G.F. Mut. Ins. Co. v. Norgard, 518 N.W.2d 179, 181 (N.D.1994). The insured still must prove he falls within an exception to the exclusion in order to benefit from coverage.

[¶ 10] The first issue presented by Lagodinski is whether the Kenworth should have been covered under the farm policy because, although motor vehicles are excluded from coverage, there is an applicable exception to this exclusion.

[¶ 11] The applicable exclusion Nationwide argues operates to preclude coverage for Klettke’s claim against Lagodinski provides:

A. COVERAGE L — Farm Liability and COVERAGE M — Medical Payments to Others do not apply to “bodily injury”, “property damage” or “personal injury”:
2. arising out of:
a. the ownership, maintenance, use, loading or unloading of “motor vehicles” or all other motorized land conveyances, including trailers, owned or operated by or rented or loaned to an “insured”.
This exclusion does not apply to farm equipment other than “motor vehicles”, “recreational motor vehicles” or “motor vehicles” not subject to “motor vehicle” registration because it is used exclusively on an “insured premises”.

[¶ 12] The policy defines “motor vehicle” as “a motorized land vehicle designed for travel on public roads or subject to motor vehicle registration. A motorized land vehicle in dead storage on an ‘insured premises’ is not a ‘motor vehicle.’ ” Lago-dinski argues the Kenworth is not subject to motor vehicle registration requirements because it was adapted solely for farm purposes and thus the motor vehicle registration statute does not require registration. We disagree.

[¶ 13] The Kenworth was designed for travel on public roads; thus, the vehicle was a motor vehicle as defined by the plain language of the policy. Even if this Court was not persuaded the plain language of the policy excluded coverage, the Ken-worth was subject to motor vehicle registration under North Dakota’s motor vehicle registration statute. If the Kenworth owned by Lagodinski fits under either of these definitions, it is excluded from coverage under the terms of the policy. The vehicle was being used off the farm premises, was not adapted exclusively for farm purposes, and was subject to motor vehicle registration under North Dakota statute.

[¶ 14] Lagodinski argues the exclusion does not operate to exclude policy coverage in this case because the Kenworth was modified to be used exclusively for farm purposes and was only taken off the farm premises to be used for transporting chemicals and water from the farmstead to fields. Lagodinski asserts modification of the Kenworth into a vehicle used exclusively for farm purposes operates to remove the vehicle from the motor vehicle definition of the policy. Lagodinski further asserts the vehicle was not subject to registration requirements, due to its change in use and location of the accident.

[¶ 15] “In construing insurance policies, we have interpreted policies in light of relevant statutory provisions.” Western Nat’l Mut. Ins. Co. v. Univ. of North Dakota, 2002 ND 63, ¶ 20, 643 N.W.2d 4. The code provides every motor vehicle is to be registered annually with a number of exceptions. Section 39-04-18(1), N.D.C.C., provides:

1. Except as provided in this section, every motor vehicle as defined in section 39-01-01, trailer or semitrailer designed to be towed by a truck or truck tractor, and farm trailer operated or intended to be operated upon any highway, road, or street in this state must be registered annually with the department. Any vehicle being operated on highways, roads, or streets of this state must display license plates as furnished by the department upon payment of the fees prescribed in this chapter.
2. The following motor vehicles may be operated upon the highways, roads, and streets of this state without being registered, under such limitations as are herein specified; provided, however, that whenever the department determines that it is to the best interest of the state of North Dakota and determines by reciprocal agreement or otherwise that as great or greater privileges are not granted North Dakota residents while traveling in other states or territories, the department may cancel or limit the application of any exception to residents or motor vehicles from such other state or territory:
a. Farm tractors as defined in section 39-01-01, special mobile equipment and road rollers and other road construction or maintenance machinery that cannot be operated on the highways and streets of this state in a normal operating manner.

N.D.C.C. § 39-01-01(18) defines “farm tractor” as “every motor vehicle designed and used primarily as a farm implement for drawing plows, moving machines, and other implements of husbandry.”

[¶ 16] Lagodinski asserts the Ken-worth’s modification to haul chemicals and water qualifies it as a “farm tractor” and makes the vehicle exempt from motor vehicle registration requirements. Lagodin-ski further argues mounting a water tank on the trailer portion makes it an “implement[] of husbandry” under N.D.C.C. § 39-01-01(18). Finally, Lagodinski asserts the Kenworth is exempt from registration because is was designed and primarily used as a farm implement for moving machines. Lagodinski asserts the water tank on the trailer is a machine within the statutory scheme and exempt from motor vehicle registration.

[¶ 17] Lagodinski argues the statute is intended to encompass the way in which he was using the tractor because it provides, “every motor vehicle designed and used primarily as a farm implement.” N.D.C.C. § 39-01-01(18). Lagodinski conceded in his brief and at the district court level he had not made any physical modifications to the Kenworth after he stopped registering the vehicle. In order to be exempt from registration requirements, the statute requires the vehicle to be “designed and used primarily as a farm implement.” N.D.C.C. § 39-01-01(18).

[¶ 18] Lagodinski relies on Heitkamp v. Milbank Mut. Ins. Co., 383 N.W.2d 834 (N.D.1986) to argue the Kenworth should be covered under the terms of the farm policy. In Heitkamp, an insured sought indemnity for a motor vehicle accident on a highway involving a pickup used primarily for farm purposes. Id. at 835. This Court ultimately found the pickup should be covered. Heitkamp held the pickup should be covered under the terms of the master farm policy because in a special verdict form, the jury found Milbank’s agent misrepresented the scope of the coverage provided by the farm policy. Additionally, the district court found the policy language in Heitkamp to be sufficiently ambiguous as to have more than one meaning.

[¶ 19] The analysis contained in Heit-kamp is not applicable to this case. In Heitkamp, the district court specifically found the policy language ambiguous. Id. at 835. The district court in this case did not find the language of the policy capable of multiple interpretations. Additionally, the two policies do not contain the same language. In order for this Court to interpret the terms of a policy in favor of the insured, the language of the policy must contain an ambiguity. Hanneman v. Continental Western Ins. Co., 1998 ND 46, ¶ 27, 575 N.W.2d 445.

[¶ 20] In this case, the Kenworth was not both designed for and primarily used as a farm implement. The primary purpose of the design of a Kenworth is to transport cargo for long distances. Under Lagodinski’s interpretation, every semi-tractor/trailer could be exempt from motor vehicle registration even without physical modification because the vehicle holds the mere potential to be used as a farm vehicle.

[¶ 21] Under the plain language of the policy, Lagodinski’s use of the Kenworth made it subject to motor vehicle registration requirements and the vehicle does not fit within the exception to the motor vehicle exclusion of the policy.

III.

[¶ 22] The next issue raised by Lagodinski is the Kenworth should be covered by the farm policy because N.D.C.C. § 32-15-03.2 provides all land up to the centerline of a public street or highway is owned by the adjoining owner and the State only possesses an easement for the public highway.

[¶ 23] Lagodinski argues the accident took place on his farm because a public highway abutting a tract of land rented by Lagodinski for his farming operation is farm property under the terms of the farm policy. Lagodinski relies on a combination of two statutes to argue the accident actually took place on land farmed by Lagodin-ski and should be covered by the farm policy:

No transfer to the state of North Dakota or any of its political subdivisions of property for highway purposes shall be deemed to include any interest greater than an easement, and where any greater estate shall have been so transferred, the same is hereby reconveyed to the owner from which such land was originally taken, or to the heirs, executors, administrators, or assigns of such owner. Such reconveyance shall be subject to any existing contracts or agreements covering such property, and all rights and benefits thereof shall accrue to the grantee.

N.D.C.C. § 32-15-03.2.

[¶ 24] Lagodinski argues N.D.C.C. § 32-15-03.2, read in conjunction with N.D.C.C. § 47-01-16, operates to extend coverage because the accident took place exclusively on Lagodinski’s farm. Section 47-01-16, N.D.C.C., provides, “[a]n owner of land bounded by a road or street is presumed to own to the center of the way, but the contrary may be shown.”

[¶ 25] This Court looks first at the language of the insurance contract to determine whether coverage existed. “When interpreting an insurance policy, we look first to the insurance contract itself.” Hanneman v. Continental Western Ins. Co., 1998 ND 46, ¶ 27, 575 N.W.2d 445 (citing Martin v. Allianz Life Ins. Co. of North America, 1998 ND 8, ¶ 9, 573 N.W.2d 823; Northwest G.F. Mut. Ins. Co. v. Norgard, 518 N.W.2d 179, 183 (N.D.1994)). “If the contract is self-explanatory and subject to only one meaning, our inquiry is at an end.” See Hanneman, at ¶ 27 (citing Martin, at ¶ 9); see also N.D.C.C. § 9-07-02 (stating, “the language of a contract is to govern its interpretation if the language is clear and explicit and does not involve an absurdity”).

[¶ 26] The plain language of the exclusion does not contain an ambiguity requiring this Court to supply an interpretation. The exclusion contains limited exceptions which do not provide coverage for motor vehicles on public roads or highways, regardless of whether the State’s interest is treated as an easement or a fee interest. Lagodinski is asking this Court to read in an exception to the exclusion which would render the insurance policy exclusion meaningless.

[¶ 27] Lagodinski is mistaken in his assertion the language of the statute controls rather than the language of the policy. The language of the policy precludes coverage for the Kenworth because it was “designed for travel on public roads or subject to motor vehicle registration.” Highway 13, where this accident occurred, was undisputedly a public road.

[¶ 28] Lagodinski argues the Kenworth should be covered because it was used exclusively for farm purposes, or exclusively on the farm. We disagree. During oral argument, Lagodinski conceded the collision occurred more than two miles from Lagodinski’s farmstead. Lagodinski also conceded the driver had to cross over several strips of highway that did not abut land owned or rented by Lagodinski. The Kenworth was not used exclusively on the farm premises. Rather, it was used on public highways traveling to and from the farmstead. Lagodinski’s arguments, while creative, fail to address the operative language in the policy that precludes coverage, which provides the “exclusion does not apply to farm equipment other than ‘motor vehicles.’ ” The policy further defines “motor vehicles” as those subject to motor vehicle registration under North Dakota statute. As previously discussed, the Kenworth was subject to motor vehicle registration under the terms of the statute.

IV.

[¶ 29] Attempting to employ the doctrine of reasonable expectations, Lago-dinski argues it was reasonable for him to assume the Kenworth was covered under the farm policy. The doctrine of reasonable expectations is an interpretive tool employed by courts which considers the experience and knowledge of the insured when purchasing insurance. Grinnell Mut. Reinsurance Co. v. Center Mut. Ins. Co., 2003 ND 50, ¶71, 658 N.W.2d 363 (Sandstrom, J., concurring in part and dissenting in part). As proof of his expectation of coverage, Lagodinski offers a letter written on his behalf by the Nationwide agent. In a criminal action initiated by the State for failure to have appropriate insurance, Lagodinski defended by submitting this letter. The letter stated:

In reference to the above case, we are submitting this letter on behalf of our insured to state that he did indeed, have liability coverage regarding this incident on May 22, 2000. Coverage was extended under his farmowners’ policy which was effective June 5, 1999 and is still in force with Allied Insurance Company out of Des Moines, Iowa. Victor Lago-dinski is an insured through our office and we are his agent licensed with Allied Insurance Company here at First Southwest Insurance Agency.

The charges against Lagodinski were dismissed. Lagodinski argues the letter from the agent is proof of his expectations regarding coverage for the policy.

[¶ 30] Lagodinski argues the letter illustrates his expectations of the policy coverage. There are several problems with this argument. First, the letter was written well after Lagodinski entered into the policy contract; therefore, it could not have been the basis of the bargain. Second, Lagodinski’s testimony on his expectations of the policy coverage indicates he did not expect coverage for motor vehicles when he entered into the insurance contract. In his deposition, Lagodinski gave this testimony:

Q: And in 2000, what was you understanding — maybe you didn’t have an understanding at that point in time — of whether or not any of your vehicles were insured under your farm liability policy through Allied?
A: Anything that wasn’t, you know, licensed or used, just used on the farm, was insured through Allied.
Q: All right. When you say “not licensed or used or just used on the farm,” what do you mean?
A: Whatever was used, didn’t go on the road.
Q: All right. In other words, if it just—
A: Used as a farm vehicle.
Q: All right. And where did you get that understanding, that that was how the coverage under the Allied farm liability policy worked?
A: I guess I just naturally thought that.

Lagodinski’s recollection as to whether the coverage extended to vehicles used off the farm premises is unclear at best. In Ms brief, Lagodinski points to evidence of his state of mind after the accident; however, none of the evidence indicates his subjective intent at the time he entered into the insurance contracts. Lagodinski failed to establish evidence of reasonable expectation of coverage, even if the doctrine applied.

[¶ 31] This Court has expressly declined to adopt the doctrine of reasonable expectations. See Western Nat’l Mut. Ins. Co. v. Univ. of North Dakota, 2002 ND 63, ¶ 19, 643 N.W.2d 4 (citing Center Mut. Ins. Co. v. Thompson, 2000 ND 192, ¶¶ 11-12, 618 N.W.2d 505). Additionally, this Court would have to determine the language of the policy is sufficiently ambiguous in order to apply the doctrine. RLI Ins. Co. v. Heling, 520 N.W.2d 849, 854-55 (N.D.1994). The district court specifically declined to find, and Lagodinski has not established, the insurance contract is ambiguous.

[¶ 32] Even if this Court had adopted the doctrine of reasonable expectations, Lagodinski cannot rely on the doctrine to provide coverage under the terms of the contract because he failed to demonstrate the contract was ambiguous.

V.

[¶ 33] As his final issue, Lagodinski asks, “[d]id the District Court err in making factual findings on Motion fór Summary Judgment concerning the reasonable expectations of Lagodinski?”

[¶ 34] In its ruling on the motion for summary judgment, the district court stated, “[t]he Court will find that Lagodinski had no expectation of coverage on the roads adjoining or adjacent to the fields.” Lagodinski argued it was err for the district court to make what appears to be a factual finding on a motion for summary judgment.

[¶ 35] In the context of a motion for summary judgment, the district court should not grant summary judgment when a dispute exists over a genuine issue of material fact. Boe v. Rose, 1998 ND 29, ¶ 15, 574 N.W.2d 834. Although the district court may have improperly commented on Lagodinski’s expectations of coverage in the context of summary judgment, the district court did not érr in its ultimate decision. In order for Lagodinski to establish his expectations are a genuine issue of material fact which should preclude summary judgment, he must demonstrate the terms of the policy are ambiguous invoking the doctrine of reasonable expectations. Grinnell, at ¶ 71. As previously discussed, Lagodinski has failed to establish the terms of the policy are ambiguous.

[¶ 36] We affirm the district court.

[¶ 37] GERALD W. VANDE WALLE, C.J., DALE V. SANDSTROM, and WILLIAM A. NEUMANN, JJ., concur.

MARING, Justice,

concurring in the result.

[¶ 38] In ¶ 13 of the majority opinion, we appear to do some fact-finding by stating that the Kenworth tractor was “not adapted exclusively for farm purposes.” Under N.D.C.C. § 39-04-18, if the Ken-worth tractor was a “farm tractor” as defined under N.D.C.C. § 39-01-01, it would not need to be registered. I do not know why the Kenworth tractor cannot be a “farm tractor.” Many farmers use tractors such as that to haul wheat, potatoes, sugar beets, etc. As long as the tractor does not leave the “insured premises,” it should fit the exception to the exclusion. In ¶ 20, I feel we are fact-finding again when we say the primary purpose of a Kenworth tractor is to transport cargo for long distances.

[¶ 39] I am of the opinion that a Ken-worth tractor could be a “tractor” and not subject to registration, but that the exception to the exclusion requires it be used exclusively on “insured premises.” The accident, however, occurred on a public highway and not on “insured premises,” and therefore, I concur in the result.

[¶ 40] Mary Muehlen Maring.


author: SANDSTROM, Justice.

text:
    2004 ND 150
    In the Matter of the ADOPTION OF S.R.F., a minor child. R.F. and D.F., Petitioners and Appellees, v. C.A.M., natural mother, Respondent and Appellant, S.D.S., natural father, and Julie Hoffman, Administrator of the Adoption Services Division of the North Dakota Department of Human Services, Respondents.
    No. 20030364.
    Supreme Court of North Dakota.
    July 22, 2004.

      Gary D. Ramsey, Greenwood & Ramsey, Dickinson, N.D., for petitioners and appel-lees.
    Robert A. Keogh, Dickinson, N.D., for respondent and appellant.
   SANDSTROM, Justice.

[¶ 1] The biological mother appeals from a judgment terminating her parental rights to her child and granting the petitioners’ adoption petition. We conclude the trial court’s findings of abandonment under N.D.C.C. §§ 14-15-06(l)(a) and 14-15 — 19(3)(a) are not clearly erroneous, and we affirm.

I

[¶ 2] The child was born in May 1999. His biological parents were never married to each other, and they had been involved in a nomadic relationship for about three years before the child’s birth. According to the mother, they had traveled around the country by automobile or by hitchhiking, and they had supported themselves by unloading trucks and panhandling. In August 1999, the mother and the father separated, and with the help of the petitioners, the mother moved with the child to Dickinson, where the mother’s parents lived. In October 1999, the mother and child began living with the petitioners, who were friends of the mother’s parents. According to the mother, in February 2000, the petitioners kicked her out of their house because she had come home drunk, and they refused to let her take the child with her. According to the petitioners, they asked the mother to move out of the house because of her use of alcohol and drugs.

[¶3] In March 2000, the petitioners were appointed temporary guardians of the child with the mother’s consent, and in May 2000, they were appointed permanent guardians. The child has numerous physical, health, and developmental problems, including a reflux disorder, frequent seizures, chronic diarrhea, a sleep disorder, and allergies to milk protein and soy products. The child is also on a feeding tube approximately twenty hours per day and is delayed in almost all areas of development, including his fine motor, gross motor, cognitive, and speech and language skills. Since May 2000, the petitioners and the child have lived together in Dickinson, and the mother has lived in Fargo with relatively little contact with the child.

[¶ 4] In January 2003, R.F. and D.F. petitioned under N.D.C.C. ch. 14-15 to adopt the child and to terminate the biological parents’ parental rights. After a hearing at which the father did not appear to contest the termination of his parental rights, the trial court concluded the mother’s consent to the adoption was not required under N.D.C.C. § 14 — 15—06(l)(a), (b), and (j), because (1) she had abandoned the child; (2) for a period of at least one year she had failed to provide care and support of the child as required by law; and (3) she had failed without justifiable cause to establish a substantial relationship with the child, or to manifest a significant parental interest in the child. The court also terminated the mother’s parental rights under N.D.C.C. § 14 — 15—19(3)(a) and (b), concluding she had abandoned the child and the child was without proper care. The court granted R.F. and D.F.’s petition to adopt the child.

[¶ 5] The trial court had jurisdiction under N.D. Const, art. VI, § 8, and N.D.C.C. §§ 14-15-04 and 27-05-06. The appeal is timely under N.D.R.App.P. 4(a). This Court has jurisdiction under N.D. Const, art. VI, §§ 2 and 6, and N.D.C.C. §§ 14-15-15 and 28-27-01.

II

[¶ 6] Under N.D.C.C. ch. 14-15, before the petitioners can adopt the child, the biological parents’ parental rights must be severed. See Adoption of J.M.H., 1997 ND 99, ¶ 6, 564 N.W.2d 623. “Consent to the termination of parental rights severs the parent-child relationship.” Id. Under N.D.C.C. § 14-15-06(1):

Consent to adoption is not required of:

a. A parent who has deserted a child without affording means of identification or who has abandoned a child.
b. A parent of a child in the custody of another, if the parent for a period of at least one year has failed significantly without justifiable cause:
(2) To provide for the care and support of the child as required by law or judicial decree.
e. A parent whose parental rights have been terminated by order of court under section 14-15-19.
j. A parent of the minor, if the failure of the parent to consent is excused by the court in the best interest of the child by reason of the parent’s prolonged unexplained absence, unavailability, incapacity, or significant failure, without justifiable cause, to establish a substantial relationship with the minor or to manifest a significant parental interest in the minor, or by reason of inability of the court to identify the parent.

Section 14-15-19(3), N.D.C.C., provides:

In addition to any other action or proceeding provided by law, the relationship of parent and child may be terminated by a court order issued in connection with an adoption action under this chapter on any ground provided by other law for termination of the relationship, and in any event on the ground:
a. That the minor has been abandoned by the parent;
b. That by reason of the misconduct, faults, or habits of the parent or the repeated and continuous neglect or refusal of the parent, the minor is without proper parental care and control, or subsistence, education, or other care or control necessary for the minor’s physical, mental, or emotional health or morals, or, by reason of physical or mental incapacity the parent is unable to provide necessary parental care for the minor, and the court finds that the conditions and causes of the behavior, neglect, or incapacity are irremediable or will not be remedied by the parent, and that by reason thereof the minor is suffering or probably will suffer serious physical, mental, moral, or emotional harm;

[¶ 7] A party seeking termination of the parent-child relationship in the context of an adoption proceeding must prove the elements necessary to support termination by clear and convincing evidence. Adoption of J.M.H., 1997 ND 99, ¶7, 564 N.W.2d 623. Clear and convincing evidence means evidence that leads to a firm belief or conviction the allegations are true. Id. This Court previously has reviewed factual findings for termination of parental rights in adoption proceedings under a procedure similar to the former trial de novo, with substantial weight given to the trial court’s findings because of its superior position to decide questions of demeanor and credibility. Id. See In re A.N., 201 N.W.2d 118, 121 (N.D.1972) (in juvenile cases, N.D.C.C. § 27-20-56 authorizes review under language similar to the former trial de novo provisions of N.D.C.C. § 28-27-12, which had been repealed and replaced by N.D.R.Civ.P. 52(a)). Effective March 1, 2004, this Court amended N.D.R.Civ.P. 52(a) to provide that findings of fact in juvenile matters shall not be set aside on appeal unless clearly erroneous. Interest of T.T., 2004 ND 138, ¶5, 681 N.W.2d 779. That amendment has effectively overruled cases applying the procedure for de novo review of juvenile matters. See, e.g., Interest of D.Q., 2002 ND 188, ¶ 9, 653 N.W.2d 713; Interest of C.R.C., 2001 ND 83, ¶ 5, 625 N.W.2d 533; Interest of M.L., 239 N.W.2d 289, 291 (N.D.1976); In re A.N., 201 N.W.2d at 120-21; In re J.Z., 190 N.W.2d 27, 29 (N.D.1971). Because N.D.R.Civ.P. 52(a) has been amended to exclude de novo review in juvenile cases, there is no reason to retain de novo i*eview under the Revised Uniform Adoption Act, and we overrule those cases applying the procedure for de novo review under the Act. See, e.g., Adoption of J.W.M., 532 N.W.2d 372, 379 (N.D.1995); Adoption of P.R.D., 495 N.W.2d 299, 302 (N.D.1993); Adoption of Lackey, 362 N.W.2d 66, 68 (N.D.1985); Pritchett v. Executive Dir. of the Soc. Serv. Bd., 325 N.W.2d 217, 220 (N.D.1982). Rule 52(a), N.D.R.Civ.P., governs our standard of review in this case.

[¶ 8] A finding of fact is clearly erroneous if it is induced by an erroneous view of the law, if no evidence exists to support the finding, or if, on the entire record, we are left with a definite and firm conviction a mistake has been made. Hogan v. Hogan, 2003 ND 105, ¶ 6, 665 N.W.2d 672. A trial court’s choice between two permissible views of the weight of the evidence is not clearly erroneous, and simply that we may have viewed the evidence differently does not entitle us to reverse the trial court. Id. (quoting Schmaltz v. Schmaltz, 1998 ND 212, ¶ 6, 586 N.W.2d 852). “On appeal, we do not reweigh conflicts in the evidence.” Center Mut. Ins. Co. v. Thompson, 2000 ND 192, ¶ 20, 618 N.W.2d 505.

[¶ 9] The trial court decided parental consent for the adoption was not required under N.D.C.C. § 14-15-06(l)(a), (b), and (j), and the mother’s parental rights were terminated under N.D.C.C. § 14-15-19(3)(a) and (b).

A

[¶ 10] In Adoption of A.M.M., 529 N.W.2d 864, 866 (N.D.1995) (quoting Adoption of A.M.B., 514 N.W.2d 670, 672 (N.D.1994)), we said abandonment is a question of fact and outlined the following criteria to determine abandonment:

we look to such factors as the parent’s contact and communication with the child, the parent’s love, care and affection toward the child, and the parent’s intent. Also relevant is the parent’s acceptance of parental obligations, such as “to care for, protect, support, educate, give moral guidance to, and provide a home for the child.” “A parent’s negligent failure to perform his parental duties is significant to the issue of abandonment.”

In Adoption of J.W.M., 532 N.W.2d at 379, we said an intent to abandon may be inferred from circumstantial evidence such as conduct.

[¶ 11] The mother claims the following findings by the trial court are not supported by the evidence:

15. [The mother] acknowledges that she has not had any real involvement with [the child’s] care since she left him in the [petitioners’] care. She also acknowledges that she has had only minimal and sporadic contact with [the child] since he has been in the [petitioners’] care. From February, 2000, up to January 23, 2003, the date of the Petition in this case, [the mother] had not spent more than 24 hours actually visiting with [the child]. After leaving [the child] with the [petitioners] in February, 2000, she only saw him approximately nine times during the rest of that year. In 2001 she again only saw him a total of nine times. In 2002 she saw him 12 times. From the beginning of this year she has only seen him on approximately six occasions. When she does see [the child] she does not spend all that much time with him. At most she will spend from a half hour to an hour with him at a time. She has never spent any significant time alone with [the child]. She has never been alone with him overnight. Also from February, 2000, up to January 23, 2003, she only called the [petitioners] approximately 12 times to inquire about [the child]. There have been times when she has been in Dickinson and she has not called the [petitioners] or stopped in to see [the child]. The [petitioners] have never prevented her from seeing or having contact with [the child].
31. [The mother] has failed, without justifiable cause, to establish a substantial relationship with the child in the past, and she offered no reasonable plan for establishing any in the near future. She has taken no action to terminate the guardianship and for the return of the child to her.

[¶ 12] The mother argues the evidence establishes the petitioners have prevented her from having contact with her son and have purposely denied her any opportunity to prepare herself to take care of her son’s medical needs. She argues that if she has not established a substantial relationship with her son, it is in large part justifiable and due to the actions of the petitioners.

[¶ 13] The trial court found the petitioners had not prevented the mother from seeing or having contact with the child, and that court was in a better position than this Court to judge the evidence and the credibility of the witnesses. There is evidence the mother failed to make meaningful contact with the child and had not spent more than twenty-four hours with the child from February 2000 to January 2003. Despite having won $5,000 in a contest while in Fargo, the mother failed to provide for the child’s care and support during the three and one-half years the child lived in Dickinson with the petitioners. The mother acknowledged she had not had any real involvement with the child’s care and had only minimal and sporadic contact with the child since she left him with the petitioners. There is evidence the mother had never spent any significant time with the child, and she had failed to establish a substantial relationship with the child or to manifest a significant parental interest in the child. There is also evidence the mother has not offered any plan to establish a relationship with the child. The mother’s actions constitute a negligent failure to perform her parental duties, which is significant to the issue of abandonment. See A.M.M., 529 N.W.2d at 866. The mother’s conduct toward the child evidences an intent to have little involvement with the child and supports an inference she intended to abandon the child. Giving due regard to the trial court’s opportunity to judge the credibility of the witnesses, we are not left with a definite and firm conviction the trial court made a mistake in finding the mother had abandoned the child. We therefore hold the trial court’s findings of clear and convincing evidence of abandonment are not clearly erroneous. We thus conclude the mother’s consent for the adoption was not required under N.D.C.C. § 14-15-06(l)(a), and the termination of her parental rights was warranted under N.D.C.C. § 14-15-19(3)(a).

B

[¶ 14] Because our resolution of the abandonment issue is sufficient to support the trial court’s decision, we need not address the other grounds found by the trial court for finding the mother’s consent to the adoption was not required, see N.D.C.C. § 14-15-06(l)(b) and (j), and the termination of her parental rights was appropriate under N.D.C.C. § 14-15-19(3)(b).

■C

[¶ 15] The mother argues the trial court erred in deciding the adoption was in the best interests of the child. We review this issue under the clearly-erroneous standard. See Adoption of Lackey, 362 N.W.2d at 68. We conclude the trial court’s finding the adoption was in the best interests of the child is not clearly erroneous.

Ill

[¶ 16] We affirm the judgment.

[¶ 17] GERALD W. VANDE WALLE, C.J., WILLIAM A. NEUMANN, MARY MUEHLEN MARING, and CAROL RONNING KAPSNER, JJ., concur.