blood alcohol test in North Dakota

2017See South Dakota v. Neville , 459 U.S. 553 , 559 and 563 (1983) (“ Schmerber , then, clearly allows a State to force a person suspected of driving while intoxicated to submit to a blood alcohol test” and “respondent concedes, as he must, that the state could legitimately compel the suspect, against his will, to accede to the [blood alcohol] test”); Skinner v. Railway Labor Executives’ Assn . , 489 U.S. 602, 625 (1989) (in Schmerber “we held that a State could direct that a blood sample be withdrawn from a motorist suspected of driving while intoxicated, despite his refusal to consent to the in

2017The Court concluded, “the compelling interest in highway safety justifies [Massachusetts] in making a summary suspension effective pending the outcome of the prompt postsuspension hearing available.” Id. [¶50] In South Dakota v. Neville , 459 U.S. 553 (1983), the Court heard a challenge to the evidentiary use of a driver’s refusal to take a blood-alcohol test for which he had impliedly consented.

2015See State v. Brenny , 2014 ND 159, ¶ 1 ; State v. Smith , 2014 ND 152, ¶ 21 , 849 N.W.2d 599 ; State v. Boehm , 2014 ND 154, ¶ 20 , 849 N.W.2d 239 .

2014CROTHERS SANDSTROM, Justice, concurring specially. [¶ 30] I understand this opinion to be consistent with the Court’s opinion in State v. Smith, 2014 ND 152 . ‘While the volun-tariness of consent is decided from the totality of the circumstances, submitting to a blood alcohol test is not rendered involuntary merely by an officer fairly giving the implied consent advisory including the criminal penalty for refusing to take the test.” Id. at ¶ 24 (Sandstrom, J., concurring specially). [¶ 31] DALE V.

2014Dep’t of Transp., 2005 ND 80, ¶ 12 , 695 N.W.2d 212 (citations omitted). [¶ 9] In Jorgensen, 2005 ND 80, ¶¶ 12-13 , 695 N.W.2d 212 , this Court held that inclusion of the blood alcohol test results in the law enforcement officer’s certified written report is a basic and mandatory provision of the statute 1 , without which the Department may not suspend a person’s driving privileges.

2014Dep’t of Transp., 2005 ND 80, ¶ 12 , 695 N.W.2d 212 (citations omitted). [¶ 9] In Jorgensen, 2005 ND 80, ¶¶ 12-13 , 695 N.W.2d 212 , this Court held that inclusion of the blood alcohol test results in the law enforcement officer’s certified written report is a basic and mandatory provision of the statute 1 , without which the Department may not suspend a person’s driving privileges.

2012Schwind v. Director, North Dakota Dep’t of Transp., 462 N.W.2d 147, 151 (N.D.1990) (“prerequisite for the exercise of the Director’s jurisdiction is the certified written report and test records of either breath, blood, saliva, or urine”). [¶ 11] Chapter 39-20, N.D.C.C., contains the mandatory statutory provisions granting the Department the authority to suspend driving privileges, and “specifically deals with chemical tests for intoxication and implied consent by persons who operate motor vehicles.” Schaaf 2009 ND 145, ¶ 18 , 771 N.W.2d 237 .

2012Nonetheless, we believe Baesler sufficiently identified the issue in the district court, and we review the hearing officer’s decision on appeal. [¶10] We have explained that “the Department’s authority to suspend driving privileges is governed by statute and that the Department must meet basic and mandatory statutory provisions to have authority to suspend driving privileges.” Schaaf v. North Dakota Dep’t of Transp. , 2009 ND 145, ¶ 9 , 771 N.W.2d 237 (and cases cited therein); see, e.g. , Jorgensen v. North Dakota Dep’t of Transp. , 2005 ND 80, ¶¶ 11-13 , 695 N.W.2d 212 (Department lacked aut

2012Nonetheless, we believe Baesler sufficiently identified the issue in the district court, and we review the hearing officer’s decision on appeal. [¶ 10] We have explained that “the Department’s authority to suspend driving privileges is governed by statute and that the Department must meet basic and mandatory statutory provisions to have authority to suspend driving privileges.” Schaaf v. North Dakota Dep’t of Transp., 2009 ND 145, ¶ 9 , 771 N.W.2d 237 (and cases cited therein); see, e.g., Jorgensen v. North Dakota Dep’t of Transp., 2005 ND 80, ¶¶ 11-13 , 695 N.W.2d 212 (Department lacked autho

2012Nonetheless, we believe Baesler sufficiently identified the issue in the district court, and we review the hearing officer’s decision on appeal. [¶10] We have explained that “the Department’s authority to suspend driving privileges is governed by statute and that the Department must meet basic and mandatory statutory provisions to have authority to suspend driving privileges.” Schaaf v. North Dakota Dep’t of Transp. , 2009 ND 145, ¶ 9 , 771 N.W.2d 237 (and cases cited therein); see, e.g. , Jorgensen v. North Dakota Dep’t of Transp. , 2005 ND 80, ¶¶ 11-13 , 695 N.W.2d 212 (Department lacked aut

2011See, e.g., State v. Messner, 481 N.W.2d 236 (N.D.1992); Bakkerud, 1998 ND 77 , 576 N.W.2d 858 ; Moore, 541 N.W.2d 84 (N.D.1995). [¶ 14] The arresting officer’s actions in this case went far beyond merely providing Tompkins with access to a telephone.

2011See, e.g. , State v. Messner , 481 N.W.2d 236 (N.D. 1992); Bakkerud , 1998 ND 77 , 576 N.W.2d 858 ; Moore , 541 N.W.2d 84 (N.D. 1995). [¶14] The arresting officer’s actions in this case went far beyond merely providing Tompkins with access to a telephone.

2011See Moberg v. Municipality of Anchorage, 152 P.3d 1170 , 1174 n. 5 (Alaska Ct.App.2007); McCormick v. Municipality of Anchorage, 999 P.2d 155, 163 (Alaska Ct.App.2000).

2011See Moberg v. Municipality of Anchorage , 152 P.3d 1170 , 1174 n.5 (Alaska Ct. App. 2007); McCormick v. Municipality of Anchorage , 999 P.2d 155, 163 (Alaska Ct. App. 2000).

2011“The admissibility of a test result for alcohol concentration is a preliminary question left to the discretion of the trial court.” Lamb , at 463 (citing Erickson, 517 N.W.2d at 648 ); see also State v. Asbridge, 555 N.W.2d 571, 573 (N.D.1996) (“Whether a blood test was fairly administered is a preliminary question of admissibility left to the discretion of the trial judge.”); State v. Zink, 519 N.W.2d 581, 583 (N.D.1994); State v. Vogel, 467 N.W.2d 86, 91 (N.D.1991); N.D.R.Ev. 104(a) and 1008.

2011“The admissibility of a test result for alcohol concentration is a preliminary question left to the discretion of the trial court.” Lamb , at 463 (citing Erickson , 517 N.W.2d at 648 ); see also State v. Asbridge , 555 N.W.2d 571, 573 (N.D. 1996) (“Whether a blood test was fairly administered is a preliminary question of admissibility left to the discretion of the trial judge.”); State v. Zink , 519 N.W.2d 581, 583 (N.D. 1994); State v. Vogel , 467 N.W.2d 86, 91 (N.D. 1991); N.D.R.Ev. 104(a) and 1008.

2011II [¶ 9] Tompkins argues the district court erred in denying his motion to suppress the results of his breath test, because excessive State involvement denied him his right to obtain an independent blood-alcohol test under N.D.C.C. § 39-20-02. “[Sjuppression of the results of a blood [alcohol] test given by law enforcement officials is an appropriate remedy for the denial of a reasonable opportunity to obtain an additional, independent blood-alcohol test; and dismissal of the criminal charges may also be warranted.” City of Fargo v. Stutlien, 505 N.W.2d 738, 745 (N.D.1993). [¶ 10] When reviewi

2011II [¶9] Tompkins argues the district court erred in denying his motion to suppress the results of his breath test, because excessive State involvement denied him his right to obtain an independent blood-alcohol test under N.D.C.C. § 39-20-02. “[S]uppression of the results of a blood [alcohol] test given by law enforcement officials is an appropriate remedy for the denial of a reasonable opportunity to obtain an additional, independent blood-alcohol test; and dismissal of the criminal charges may also be warranted.” City of Fargo v. Stutlien , 505 N.W.2d 738, 745 (N.D. 1993). [¶10] When reviewi

2011See Moberg v. Municipality of Anchorage, 152 P.3d 1170 , 1174 n. 5 (Alaska Ct.App.2007); McCormick v. Municipality of Anchorage, 999 P.2d 155, 163 (Alaska Ct.App.2000).

2011See Moberg v. Municipality of Anchorage , 152 P.3d 1170 , 1174 n.5 (Alaska Ct. App. 2007); McCormick v. Municipality of Anchorage , 999 P.2d 155, 163 (Alaska Ct. App. 2000).

2011Lock v. Moore, 541 N.W.2d 84, 88 (N.D.1995).

2011See, e.g., State v. Messner, 481 N.W.2d 236 (N.D.1992); Bakkerud, 1998 ND 77 , 576 N.W.2d 858 ; Moore, 541 N.W.2d 84 (N.D.1995). [¶ 14] The arresting officer’s actions in this case went far beyond merely providing Tompkins with access to a telephone.

2011However, “[w]here the prosecution uses both the rule-based (testimony) and statute-based (documents) methods of proving fair administration, the defendant cannot rebut this showing simply by establishing a deviation from approved procedures, if the testimony shows fair administration despite the deviation.” Zimmerman , at 642 n. 5. [¶ 6] Thus, “[t]he results of a blood-alcohol test must be received into evidence if the test was fairly administered, and the fair administration of an Intoxilyzer test may be established by showing it was performed according to the State Toxicologist’s Approved Me

2011However, “[w]here the prosecution uses both the rule-based (testimony) and statute-based (documents) methods of proving fair administration, the defendant cannot rebut this showing simply by establishing a deviation from approved procedures, if the testimony shows fair administration despite the deviation.” Zimmerman , at 642 n.5. [¶6] Thus, “[t]he results of a blood-alcohol test must be received into evidence if the test was fairly administered, and the fair administration of an Intoxilyzer test may be established by showing it was performed according to the State Toxicologist’s Approved Meth

2011“The admissibility of a test result for alcohol concentration is a preliminary question left to the discretion of the trial court.” Lamb , at 463 (citing Erickson, 517 N.W.2d at 648 ); see also State v. Asbridge, 555 N.W.2d 571, 573 (N.D.1996) (“Whether a blood test was fairly administered is a preliminary question of admissibility left to the discretion of the trial judge.”); State v. Zink, 519 N.W.2d 581, 583 (N.D.1994); State v. Vogel, 467 N.W.2d 86, 91 (N.D.1991); N.D.R.Ev. 104(a) and 1008.

2011“The admissibility of a test result for alcohol concentration is a preliminary question left to the discretion of the trial court.” Lamb , at 463 (citing Erickson , 517 N.W.2d at 648 ); see also State v. Asbridge , 555 N.W.2d 571, 573 (N.D. 1996) (“Whether a blood test was fairly administered is a preliminary question of admissibility left to the discretion of the trial judge.”); State v. Zink , 519 N.W.2d 581, 583 (N.D. 1994); State v. Vogel , 467 N.W.2d 86, 91 (N.D. 1991); N.D.R.Ev. 104(a) and 1008.

2011“The admissibility of a test result for alcohol concentration is a preliminary question left to the discretion of the trial court.” Lamb , at 463 (citing Erickson, 517 N.W.2d at 648 ); see also State v. Asbridge, 555 N.W.2d 571, 573 (N.D.1996) (“Whether a blood test was fairly administered is a preliminary question of admissibility left to the discretion of the trial judge.”); State v. Zink, 519 N.W.2d 581, 583 (N.D.1994); State v. Vogel, 467 N.W.2d 86, 91 (N.D.1991); N.D.R.Ev. 104(a) and 1008.

2011“The admissibility of a test result for alcohol concentration is a preliminary question left to the discretion of the trial court.” Lamb , at 463 (citing Erickson , 517 N.W.2d at 648 ); see also State v. Asbridge , 555 N.W.2d 571, 573 (N.D. 1996) (“Whether a blood test was fairly administered is a preliminary question of admissibility left to the discretion of the trial judge.”); State v. Zink , 519 N.W.2d 581, 583 (N.D. 1994); State v. Vogel , 467 N.W.2d 86, 91 (N.D. 1991); N.D.R.Ev. 104(a) and 1008.

2011City of Grand Forks v. Zejdlik, 551 N.W.2d 772, 774 (N.D.1996).

2011City of Grand Forks v. Zejdlik , 551 N.W.2d 772, 774 (N.D. 1996).

2009State v. Jordheim, 508 N.W.2d 878, 881 (N.D.1993).

1994In State v. Jordheim, 508 N.W.2d 878, 882 (N.D.1993), we held that certified compliance with Form 104 (6-92) was prima facie evidence of fair administration of a blood-alcohol test for purposes of admission under NDCC § 39-20-07(5).

2001Friedman v. Commissioner of Public Safety, 473 N.W.2d 828, 835 (Minn.1991). [¶ 19] The Minnesota Court of Appeals stated the Kuhn factors are a nonexclusive list of relevant facts for determining whether a given amount of time to consult an attorney was reasonable.

2001Friedman v. Commissioner of Public Safety , 473 N.W.2d 828, 835 (Minn. 1991). [¶19] The Minnesota Court of Appeals stated the Kuhn factors are a nonexclusive list of relevant facts for determining whether a given amount of time to consult an attorney was reasonable.

2001Kuhn , at 842. [¶ 18] In North Dakota, we have held there is only a limited statutory right under N.D.C.C. ch. 39-20 to consult with a lawyer prior to deciding whether to take a blood-alcohol test.

2001Kuhn , at 842. [¶18] In North Dakota, we have held there is only a limited statutory right under N.D.C.C. ch. 39-20 to consult with a lawyer prior to deciding whether to take a blood-alcohol test.

2001Kuntz v. State Highway Commissioner, 405 N.W.2d 285, 290 (N.D.1987).

2001Kuntz v. State Highway Commissioner , 405 N.W.2d 285, 290 (N.D. 1987).

1980Schmerber v. Arizona, 384 U.S. 757 , 86 S.Ct. 1826 , 16 L.Ed.2d 908 (1966); State v. Miller, 146 N.W.2d 159 (N.D.1966). 5 Thus there is no impingement of Fifth Amendment rights in requiring a person to respond to an officer’s request to submit to a blood-alcohol test.

1980Schmerber v. Arizona, 384 U.S. 757 , 86 S.Ct. 1826 , 16 L.Ed.2d 908 (1966); State v. Miller, 146 N.W.2d 159 (N.D.1966). 5 Thus there is no impingement of Fifth Amendment rights in requiring a person to respond to an officer’s request to submit to a blood-alcohol test.

2011“The admissibility of a test result for alcohol concentration is a preliminary question left to the discretion of the trial court.” Lamb , at 463 (citing Erickson, 517 N.W.2d at 648 ); see also State v. Asbridge, 555 N.W.2d 571, 573 (N.D.1996) (“Whether a blood test was fairly administered is a preliminary question of admissibility left to the discretion of the trial judge.”); State v. Zink, 519 N.W.2d 581, 583 (N.D.1994); State v. Vogel, 467 N.W.2d 86, 91 (N.D.1991); N.D.R.Ev. 104(a) and 1008.

2005We have held that, if a defendant rebuts the prosecution’s prima facie showing of fair administration of a blood-alcohol test for admission under N.D.C.C. § 39-20-07(5), “the prosecution may present testimony to show fair administration despite defendant’s rebuttal.” State v. Erickson , 517 N.W.2d 646, 648-49 (N.D. 1994).

2015Ultimately, the Court in Neville held, “[A] refusal to take a blood-alcohol test, after a police officer has lawfully requested it, is not an act coerced by the officer, and thus is not protected by the privilege against self-incrimination.” Id. at 564 , 103 S.Ct. 916 (footnote omitted); see also State v. Murphy, 516 N.W.2d 285 (N.D.1994). [¶ 10], In contrast to Neville, Bauer points to Doyle v. Ohio, which explains, “[W]hen a person under arrest is informed, as Miranda requires, that he may remain silent, ... it seems to me that it does not comport with due process to permit the prosecution d

1994Unlike this case, the driver in Neville was given a Miranda warning, which, presumably, dispelled the compulsion inherent in custodial surroundings and rendered the officer's request for a test noncoercive. [6] In State v. Murphy, 516 N.W.2d 285 , ___ (N.D. 1994), we rejected an assertion that proof of a refusal might be admitted as evidence under § 39-20-08, N.D.C.C., but that the jury should be instructed that a refusal is not evidence of guilt and is not to be considered in determining the defendant's guilt or innocence. [7] We need not decide if a simple "No" in response to an officer's qu

2015See State v. Brenny , 2014 ND 159, ¶ 1 ; State v. Smith , 2014 ND 152, ¶ 21 , 849 N.W.2d 599 ; State v. Boehm , 2014 ND 154, ¶ 20 , 849 N.W.2d 239 .

2014State v. Smith , 2014 ND 152, ¶¶ 1, 16-22 , 849 N.W.2d 599 ; State v. Boehm , 2014 ND 154, ¶¶ 17-22 , 849 N.W.2d 239 ; State v. Brenny , 2014 ND 159, ¶ 1 .