Blazer v. Dep't of Public Safety

#30499-r-PJD
2024 S.D. 74

IN THE SUPREME COURT
OF THE
STATE OF SOUTH DAKOTA

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DONALD WILLIAM BLAZER, Plaintiff and Appellee,

v.

SOUTH DAKOTA DEPARTMENT OF
PUBLIC SAFETY, Defendant and Appellant.

****

APPEAL FROM THE CIRCUIT COURT OF
THE FIFTH JUDICIAL CIRCUIT
EDMUNDS COUNTY, SOUTH DAKOTA

****

THE HONORABLE RICHARD A. SOMMERS
Judge

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MARTY J. JACKLEY
Attorney General

JENNA R. SEVERYN
Special Assistant Attorney General
Pierre, South Dakota Attorneys for defendant and
appellant.

BRANDON M. TALIAFERRO
Aberdeen, South Dakota Attorney for plaintiff and
appellee.

****

CONSIDERED ON BRIEFS
APRIL 23, 2024
OPINION FILED 12/11/24
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DEVANEY, Justice

[¶1.] During an investigation of a vehicle accident caused by Donald Blazer,

he voluntarily submitted to a preliminary breath test (PBT), but he refused to

submit to a blood draw. The South Dakota Department of Public Safety

(Department) sent Blazer notice of its intent to disqualify his commercial driver’s

license (CDL) for life because his refusal to submit to the blood draw constituted a

second violation of SDCL 32-12A-36; the first occurred in 2014 when he was

convicted of driving under the influence. Blazer requested an administrative

hearing, after which the Department affirmed the disqualification of his CDL for

life. The circuit court reversed, concluding that Blazer’s voluntary submission to

the breath test constituted a submission to a chemical analysis such that his refusal

to submit to the blood draw could not result in the disqualification of his CDL. The

Department appeals. We reverse.

Factual and Procedural Background

[¶2.] At approximately 10:00 p.m. on December 28, 2022, Blazer’s vehicle

crossed the centerline on U.S. Highway 12 and struck another vehicle. He drove

away from the scene of the accident, but shortly thereafter law enforcement found

his abandoned vehicle approximately a mile away and followed his footprints to his

location. They brought Blazer back to his vehicle and placed him in handcuffs.

Blazer admitted that he was the driver of the vehicle involved in the accident.

While Blazer was talking, South Dakota Highway Patrol Trooper Tyler Woodside

detected the odor of alcohol coming from him. When asked if he had been drinking

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alcohol, Blazer admitted to having consumed four beers. Trooper Woodside testified

that he thereafter “obtained a PBT from him” and “[t]he result was .102 percent.”

[¶3.] Trooper Woodside placed Blazer under arrest and ran a check on his

driver’s license. He discovered that Blazer held a CDL and testified that as a result,

he “read him the implied consent card for a commercial driver’s license holder” and

asked Blazer to submit to a blood draw. Blazer refused to do so. Trooper Woodside

transported Blazer to the local jail and obtained a search warrant to obtain a blood

sample. Blazer complied with the blood draw when presented with the warrant.

[¶4.] On January 4, 2023, Blazer was charged by complaint with driving

under the influence in violation of SDCL 32-23-1(1) and (2), failure to furnish

information regarding an accident in violation of SDCL 32-34-6, and driving on the

wrong side of the road in violation of SDCL 32-26-1. The complaint was dismissed

without prejudice in February 2023 after the result of the chemical analysis of

Blazer’s blood revealed a .071 percent blood alcohol content.

[¶5.] On January 5, 2023, the Department sent Blazer a notification of its

intent to disqualify Blazer’s CDL for life based on his December 28, 2022 refusal to

give consent to the blood draw and his 2014 conviction of driving under the

influence. 1 Blazer requested an administrative hearing, and at the hearing he was

1. Under SDCL 32-12A-37, a person is disqualified from driving a commercial
motor vehicle “for life for the commission of two or more violations of any of
the subdivisions specified in § 32-12A-36, or any combination of those
subdivisions, arising from two or more separate incidents.”

The Department relied on SDCL 32-12A-36(1), which disqualifies a person
convicted of driving under the influence, as well as SDCL 32-12A-36(5),
which disqualifies a person “[f]or refusing to submit to a chemical analysis for
(continued . . .)
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represented by counsel. The Department presented testimony from Trooper

Woodside and a Department employee. Blazer testified on his own behalf.

[¶6.] During direct examination, Trooper Woodside testified about his

encounter with Blazer consistent with what is related above. He also explained his

reason for obtaining a PBT and subsequent blood draw: “The PBT’s just to confirm

that from my observations of Mr. Blazer he had, in fact, been consuming alcoholic

beverages. The blood draw I can send off to the State Health Lab in Pierre, South

Dakota. It’s a test for the blood alcohol content.”

[¶7.] When asked during cross-examination about the type of breathalyzer

he used, Trooper Woodside testified that he used “an Intoximeter, the PBT that was

issued to [him] by the South Dakota Highway Patrol.” He indicated that he is

familiar with how the Intoximeter works and answered “Yes” when asked whether

he “would agree that the breathalyzer measures blood alcohol content[.]” He also

answered “Yes” to the statement that “the way the breathalyzer measures blood

alcohol content is due to a chemical reaction when the breath goes into the

machine[.]” Also during cross-examination, Trooper Woodside replied “Yes” to the

statement and question, “And you’ve already testified that you agree that the

breath test tests for blood alcohol. So fair to say that a person’s breath could be a

substance to be tested for blood alcohol?”

________________________
(. . . continued)
purposes of determining the amount of alcohol or drugs in that person’s blood
or other bodily substance while driving a commercial or noncommercial motor
vehicle in violation of . . . [SDCL] 32-12A-46[.]”

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[¶8.] Blazer testified that he sustained a severe concussion as a result of the

accident and was out of work for approximately a month. He further testified that

because of the injury he did not recall being read the implied consent statute by

Trooper Woodside. He disagreed that his inability to recall the events of the

evening was related to his consumption of alcohol, and he disagreed that he refused

to submit to a chemical analysis, stating that he submitted to the breath test as

requested by the officer.

[¶9.] The Administrative Law Judge (ALJ) took the matter under

advisement and thereafter issued a written proposed decision. The ALJ found that

Blazer submitted to a PBT and the result was .102 percent. The ALJ further found

that “Blazer refused to submit to a chemical analysis” as required by SDCL 32-12A-

46 when he refused Trooper Woodside’s request that he submit to a blood draw.

The ALJ did not specifically address the question whether Blazer’s submission to a

breath test qualified as submitting to a “chemical analysis” under SDCL 32-12A-46.

The ALJ concluded that Blazer’s refusal to submit to a blood draw constituted a

second offense under SDCL 32-12A-36. The ALJ thus proposed that Blazer’s CDL

be disqualified for life under SDCL 32-12A-37. The Department adopted the ALJ’s

proposed decision and issued its final decision disqualifying Blazer’s CDL for life.

[¶10.] Blazer appealed the Department’s decision to the circuit court, and

relevant to this appeal, he asserted that the Department erred in concluding that

SDCL 32-12A-46 required him to submit to a blood test after he already submitted

to a breath test. More specifically, he argued that his submission to the breath test

satisfied his obligation under SDCL 32-12A-46 to submit to a chemical analysis of

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an “other bodily substance” to determine the amount of alcohol in his blood. Blazer

relied on Trooper Woodside’s testimony that the Intoximeter measures blood alcohol

content through a chemical reaction to one’s breath. He further argued that

because SDCL 32-12A-36(5) deems it a violation for a CDL holder to refuse to

submit to “a chemical analysis” and Blazer submitted to a chemical analysis of his

breath, the ALJ erred in concluding that his refusal to submit to a chemical

analysis of his blood provides a basis for disqualifying his CDL.

[¶11.] Before considering Blazer’s arguments, the circuit court, in an email to

the parties, asked them to submit additional briefing on the import of this Court’s

decision in State v. Richards, 378 N.W.2d 259 (S.D. 1985), which, according to the

circuit court, “did rule that a breath test was a chemical analysis.” In its brief, the

Department argued that Richards does not apply because it concerned the

presumptions arising from a chemical analysis for purposes of a criminal

prosecution and not, as here, the statutory framework relevant to a CDL

disqualification. The Department further asserted that SDCL 32-12A-36(5)

“directly contemplates a determination of alcohol in a CDL holder’s blood” and

“SDCL 32-12A-46 directly contemplates a withdrawal of blood.” Finally, the

Department noted that under applicable federal regulations, adopted through

SDCL 32-12A-58, “a refusal to be tested is [an] . . . offense which subjects the CDL

holder to disqualification.”

[¶12.] In Blazer’s supplemental brief, he argued that Richards applies to the

question whether a breath test can accomplish a chemical analysis as referenced in

SDCL 32-12A-36(5). He asserted that even though Richards concerned a different

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statute, the Court broadly determined that a device measuring blood alcohol

content from one’s breath accomplishes a chemical analysis. See 378 N.W.2d at 262

(determining that “[t]he phrase ‘chemical analysis’ commonly includes ‘tests for

identifying chemical compounds by their physical properties, as the Intoxilyzer

does’”). Blazer then argued that based on Trooper Woodside’s testimony that the

Intoximeter chemically analyzed Blazer’s breath, his submission to the breath test

satisfied his obligation to consent to a chemical analysis under SDCL 32-12A-46.

[¶13.] In its memorandum decision, the circuit court determined that breath

is an “other bodily substance” under SDCL 32-12A-46 and that based on Richards,

the test of Blazer’s breath constitutes a chemical analysis. The court then noted

Trooper Woodside’s testimony that the Intoximeter measures blood alcohol content.

The court therefore held that Blazer complied with SDCL 32-12A-46 by submitting

to a chemical analysis of his breath and issued an order reversing the ALJ’s decision

adopted by the Department.

[¶14.] The Department appeals, asserting the circuit court erred in reversing

the Department’s decision disqualifying Blazer’s CDL for life.

Standard of Review

[¶15.] “Our review of agency decisions is the same as the review made by the

circuit court.” In re Jarman, 2015 S.D. 8, ¶ 8, 860 N.W.2d 1, 5. Therefore, “[w]e

perform that review of the agency’s findings ‘unaided by any presumption that the

circuit court’s decision was correct.’” Id. (citation omitted). In that regard, “[w]hen

reviewing findings of fact we apply the clearly erroneous standard of review, giving

great weight to the agency’s findings and inferences drawn on questions of fact.”

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Bonebright v. City of Miller, 2020 S.D. 16, ¶ 13, 941 N.W.2d 231, 235 (citation

omitted). It is well settled that “we review questions of statutory interpretation de

novo.” Anderson v. Tri State Constr., LLC, 2021 S.D. 50, ¶ 10, 964 N.W.2d 532, 536

(citation omitted). Similarly, when the issue on appeal concerning an agency’s

decision “is a question of law, the [agency’s] actions are fully reviewable by this

Court under the de novo standard.” Bonebright, 2020 S.D. 16, ¶ 12, 941 N.W.2d at

235 (citation omitted).

Analysis and Decision

[¶16.] The Department contends that Blazer’s refusal to submit to a blood

draw constitutes a disqualifying offense under SDCL 32-12A-36 regardless of

Blazer’s prior submission to a breath test during the same encounter. In response

to Blazer’s argument below that he was only required to submit to one chemical

analysis, the Department directs this Court to SDCL 32-23-1.2, which provides:

Every person operating a vehicle which has been involved in an
accident or which is operated in violation of any of the provisions
of this chapter shall, at the request of a law enforcement officer,
submit to a breath test to be administered by such officer. If
such test indicates that such operator has consumed alcohol, the
law enforcement officer may require such operator to submit to a
chemical test in the manner set forth in this chapter.

(Emphasis added.) The Department then refutes Blazer’s reliance on Richards by

noting this Court’s decision in Dep’t of Pub. Safety v. Gates, 350 N.W.2d 59 (S.D.

1984). In Gates we held that because SDCL 32-23-1.2 permits a PBT, which may be

required in addition to a chemical test, Gates violated the applicable implied

consent statute, SDCL 32-23-10, when he refused to submit to a blood draw after he

submitted to a PBT. Id. at 61.

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[¶17.] In response, Blazer argues that although Gates concluded, based on

SDCL 32-23-1.2, that both a PBT and a chemical test pursuant to SDCL 32-23-10

may be required, the Court “did not hold that a PBT can never accomplish a

chemical analysis.” Rather, in his view, this Court’s decision in Stensland v. Smith

controls and makes clear that a driver’s implied consent extends to only one

chemical test. See 79 S.D. 651, 654, 116 N.W.2d 653, 654 (1962). In Stensland, the

Court interpreted the predecessor to SDCL 32-23-10, which provided that a driver is

deemed to have given “consent to a chemical analysis of his blood, urine, breath[,] or

other bodily substance[,]” to mean that the driver has given consent for “only one of

the tests mentioned in our law.” 116 N.W.2d at 653–54 (interpreting SDC Supp.

1960, § 44.0302-2) (emphasis added). As he did below, Blazer relies on Richards to

support his argument that because Trooper Woodside testified that the Intoximeter

measures blood alcohol content by a chemical reaction to one’s breath, Blazer’s

submission to a breath test accomplished a chemical analysis. As such, he contends

his submission to a chemical test of his breath satisfied SDCL 32-12A-46.

[¶18.] Our review of the applicable statutes is guided by well-settled

principles:

“The purpose of statutory interpretation is to discover legislative
intent.” State v. Bryant, 2020 S.D. 49, ¶ 20, 948 N.W.2d 333,
338. “The starting point when interpreting a statute must
always be the language itself.” Id. “We therefore defer to the
text where possible.” State v. Armstrong, 2020 S.D. 6, ¶ 16, 939
N.W.2d 9, 13. “When the language in a statute is clear, certain
and unambiguous, there is no reason for construction, and the
Court’s only function is to declare the meaning of the statute as
clearly expressed.” Id. “In conducting statutory interpretation,
we give words their plain meaning and effect, and read statutes
as a whole.” State v. Thoman, 2021 S.D. 10, ¶ 17, 955 N.W.2d
759, 767.

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State v. Bettelyoun, 2022 S.D. 14, ¶ 24, 972 N.W.2d 124, 131 (cleaned up).

[¶19.] Under SDCL 32-12A-46:

Any person who holds or is required to hold a commercial
learner’s permit or commercial driver license and operates any
commercial or noncommercial motor vehicle in this state is
considered to have given consent to the withdrawal of blood or
other bodily substance to determine the amount of alcohol in
that person’s blood, or to determine the presence of any
controlled drug or substance. The chemical analysis shall be
administered at the direction of a law enforcement officer who,
after stopping or detaining any person who holds or is required
to hold a commercial learner’s permit or commercial driver
license, has probable cause to believe that the person was
driving or in actual physical control of a commercial or
noncommercial motor vehicle while having any alcohol or drugs
in that person’s system.

Notably, the chemical analysis being referred to in this statute may only be

required after an officer has probable cause to believe the driver was driving with

alcohol or drugs in his or her system. The statute further provides that when a

person has been requested by an “officer under this section to submit to a chemical

analysis[,]” the officer must advise the person that:

(1) If the person refuses to submit to the chemical analysis, none
may be given, unless a warrant for the chemical analysis is
issued; and

(2) If the person refuses to submit to the chemical analysis
requested, the person shall be:

(a) Immediately placed out of service for a period of
twenty-four hours, if operating a commercial motor
vehicle at the time of the refusal; and

(b) Disqualified from operating a commercial motor
vehicle for a period of not less than one year; or

(3) If the person submits to a chemical analysis which discloses
that the person was operating the commercial motor vehicle

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while there was 0.04 percent or more by weight of alcohol in that
person’s blood the person shall be disqualified from operating a
commercial motor vehicle for not less than one year.

Id. (emphasis added).

[¶20.] It is undisputed that Trooper Woodside provided Blazer the required

advisement when requesting that he submit to a blood draw. Further, it does not

appear from the Department’s appellate briefs that it disputes Blazer’s claim that

the PBT performed by Trooper Woodside accomplished a chemical analysis to

determine blood alcohol content. 2 Thus, the crux of the issue on appeal is whether a

CDL holder’s refusal to give consent to a blood test after having already submitted

to a PBT violates SDCL 32-12A-46 and thus constitutes a disqualifying offense

under SDCL 32-12A-36(5). In answering this question, we turn to our prior

decisions.

[¶21.] In an argument that mirrors the one Blazer makes here, the defendant

in Gates argued that the circuit court erred in determining that his refusal to

submit to a blood test after submitting to a PBT constituted a failure to comply with

SDCL 32-23-10. 350 N.W.2d at 61. At the time of Gates’s arrest, SDCL 32-23-10

(the similarly worded counterpart to SDCL 32-12A-46) provided:

Any person who operates any vehicle in this state shall be
deemed to have given his consent to a chemical analysis of his
blood, urine, breath or other bodily substance for the purpose of
determining the amount of alcohol in his blood, as provided in
§ 32-23-7, provided that such test is administered at the

2. The ALJ did not make any findings regarding the validity of Trooper
Woodside’s opinion. However, Blazer relies extensively on this testimony on
appeal, and the Department in no way challenges the accuracy of Trooper
Woodside’s opinion.

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direction of a law enforcement officer having lawfully arrested
such person for a violation of § 32-23-1[.]

Id. (quoting SDCL 32-23-10 (1973)). This Court rejected Gates’s argument,

concluding that based on SDCL 32-23-1.2, a “preliminary breath test is permitted

by law and may be required in addition to a chemical test pursuant to SDCL 32-23-

10.” 3 Id. (emphasis added).

[¶22.] Shortly after Gates, we issued a decision distinguishing the chemical

test permitted under an implied consent statute from a breath test administered as

a preliminary matter to determine whether alcohol was consumed. State v.

Anderson, 359 N.W.2d 887 (S.D. 1984). In Anderson, the defendant argued that law

enforcement could not subject him to a PBT because SDCL 32-23-10 only permits

chemical analysis of a person’s blood, breath, or other bodily substance after a

lawful arrest has been made, and he was not placed under arrest until after the

PBT. 4 Id. at 890. In response, the State argued that SDCL 32-23-10 “refers only to

tests, the results of which may be admitted as evidence to show alcohol content in

3. When interpreting the predecessor to SDCL 32-23-10, the Court in Stensland
determined that consent to “a chemical analysis” meant that the statutory
implied consent extends only to one chemical test. 79 S.D. at 654, 116
N.W.2d at 654 (emphasis added). However, the Court in Gates noted that
Stensland was decided before the Legislature enacted SDCL 32-23-1.2.
Gates, 350 N.W.2d at 61. The Gates Court did not overrule Stensland but
reconciled it with the statutes; it is apparent that the Court’s holding hinged
on the determination that the breath test authorized under SDCL 32-23-1.2
is preliminary and is separate from the additional chemical test that comes
later. See id. & n.*.

4. Anderson did not involve a refusal to submit to a chemical analysis under
SDCL 32-23-10. Rather, the issue on appeal concerned whether the circuit
court properly suppressed all evidence derived from a traffic stop and arrest,
including the results of a breathalyzer and blood test.

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relation to SDCL 32-23-7,” while “PBT results are not used as evidence of an alcohol

content above or below .10, the presumptive level, but are only used as a pre-arrest

sobriety test to establish probable cause for arrest and the administration of

evidentiary tests, i.e., the blood test or the intoxilyzer.” Id. at 891.

[¶23.] In rejecting Anderson’s claim that he should not have been subjected to

a PBT, the Court did not expressly conclude whether the PBT at issue and the

Intoxilyzer were the same or whether one was a chemical test and the other was

not. Rather, we focused on the distinction between the use of a PBT as a

preliminary test to support a determination of probable cause and an “evidentiary

chemical analysis” that is administered thereafter. Id. In doing so, the Court

stated that “SDCL 32-23-10, which permits chemical analysis of a defendant’s blood,

breath[,] or other bodily substance after a lawful arrest has been made, must be

read in pari materia with the rest of the chapter.” Id. We then noted that the

result of a chemical analysis conducted in accord with SDCL 32-23-10 gives rise to

the statutory presumptions in SDCL 32-23-7, which may conclusively show a

violation of SDCL 32-23-1(2). Id. After further noting that a “[r]efusal to submit to

the chemical analysis permitted under SDCL 32-23-10” could “result in a driver’s

license revocation[,]” we observed that “the legislature’s limitation of evidentiary

chemical analysis to arrest situations is appropriate.” Id. (emphasis added).

[¶24.] Particularly relevant to the Department’s appeal here, the Court then

determined that “SDCL 32-23-1.2 permits implementation of the PBT as a field

sobriety test, which, like the traditional mental and physical dexterity tests, may be

given upon reasonable suspicion that a person has violated SDCL 32-23-1.” Id. at

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892. We observed that “[t]he legislature would not have gone to the trouble of

passing SDCL 32-23-1.2 if they did not intend it to go beyond the restrictions

incorporated in SDCL 32-23-10.” Id. Therefore, we held that a PBT may be

administered despite the absence of probable cause for an arrest. Id. We further

explained that although “PBT results may not be used as evidence against a

defendant[,]” SDCL 32-23-1.2 provides that if a PBT indicates the driver has

consumed alcohol, law enforcement may require the driver “to submit to a chemical

test in the manner set forth in this chapter.” Id.

[¶25.] This Court’s decision in Richards provides an example of Anderson’s

rationale in practice. In Richards, the trooper stopped the defendant’s vehicle as

part of a traffic check. 378 N.W.2d at 260. While issuing a warning ticket, the

trooper observed that the defendant had “bloodshot eyes, slow and deliberate

speech, and [a] strong odor” of alcohol. Id. The defendant agreed to take a PBT,

and the test indicated the presence of alcohol. The trooper then arrested the

defendant and took him to the county jail. At the county jail, the defendant took

another breath test, via the Intoxilyzer, which showed a blood alcohol content of .15

percent.

[¶26.] During the defendant’s trial, the results of both breath tests were

admitted into evidence over the defendant’s objection, and he was ultimately

convicted of violating SDCL 32-23-1(1). On appeal, he argued that neither the

results from the first breath test nor the second could be admitted into evidence at

trial. We determined that the circuit court erred in admitting evidence related to

the first breath test because of our prior holding in Anderson that PBT results can

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only be admitted when a defendant raises the issue of probable cause and grounds

for an arrest. Id. (citing Anderson, 359 N.W.2d at 892).

[¶27.] In contrast, we upheld the circuit court’s admission of the results of the

Intoxilyzer under SDCL 32-23-7, which provides that a chemical analysis of the

defendant’s breath can give rise to certain presumptions. Richards, 378 N.W.2d at

261. Importantly, while Richards determined that the Intoxilyzer accomplished a

chemical analysis to determine alcohol content, the case did not concern the

interplay between SDCL 32-23-1.2 and our implied consent laws. Therefore, even if

Richards supports a conclusion here that the Intoximeter used by the trooper to test

Blazer’s breath provided a chemical analysis to determine alcohol content, Gates

and Anderson are more instructive on the question whether Blazer’s submission to

that breath test means he submitted to the chemical analysis contemplated by our

implied consent laws.

[¶28.] As Gates and Anderson make clear, under SDCL 32-23-1.2, an officer

may request that a driver submit to a preliminary breath test, and if that test

indicates that the driver has consumed alcohol, then the officer may also require the

driver to submit to a chemical test “in the manner set forth in [SDCL chapter 32-

23],” the results of which may be admitted as evidence. Gates, 350 N.W.2d at 61;

Anderson, 359 N.W.2d at 892. Under this type of scenario, the preliminary breath

test does not accomplish the chemical analysis referenced in our implied consent

laws. Rather, it is the subsequent chemical test that drivers are required to submit

to under either SDCL 32-23-10 (following an arrest) or under SDCL 32-12A-46 (if

law enforcement has probable cause to believe a CDL holder has been driving with

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alcohol or drugs in that person’s system). Therefore, although some types of breath

tests might accomplish a chemical analysis to determine alcohol content, when such

a test is administered as a preliminary matter to determine probable cause,

consenting to that test does not excuse a driver from the requirement to submit to

the chemical analysis required by SDCL 32-12A-46.

[¶29.] It is undisputed here that Trooper Woodside administered Blazer the

breath test, via the Intoximeter, to confirm his suspicion that Blazer had consumed

alcoholic beverages. After the result of the PBT indicated that Blazer had

consumed alcohol and Trooper Woodside determined he had probable cause to

believe Blazer was driving under the influence, the trooper was authorized under

SDCL 32-23-1.2 and SDCL 32-12A-46 to require Blazer to submit to a chemical

analysis of his blood. It is undisputed that Blazer refused to submit to such a test.

Therefore, the ALJ properly determined that Blazer refused to submit to a chemical

analysis of his blood as required by SDCL 32-12A-46, which constituted his second

violation under SDCL 32-12A-36 and supported disqualification of his CDL for life

under SDCL 32-12A-37. As such, the circuit court erred in reversing the ALJ’s

decision that was adopted by the Department. In light of this ruling, it is

unnecessary to address the Department’s second argument that the circuit court

erred in failing to liberally interpret the laws governing CDL holders in favor of the

public’s interest and against the CDL driver involved.

[¶30.] Reversed.

[¶31.] JENSEN, Chief Justice, and KERN, SALTER, and MYREN, Justices,

concur.

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