City of Gwinner v. Vincent, 2017 ND 82

On Nov. 6, 2015, Deputy Kozok arrested Paul Vincent for DUI and read him the Miranda warnings and North Dakota Implied Consent Advisory before requesting a chemical (blood) test.
Vincent twice responded to the implied consent request by saying, “talk to my attorney.” The deputy interpreted these statements as ambiguous.
Vincent gave a phone number (no attorney name); the deputy called the number from his personal phone while Vincent sat in the patrol car, but there was no answer.
After the failed call, Vincent did not request further assistance and agreed to the blood test; the test showed alcohol concentration above legal limits.
Vincent moved to suppress the chemical-test evidence arguing his limited statutory right to consult counsel before the test was violated; the district court denied the motion as Vincent’s statements were ambiguous and not an unambiguous request for counsel.
Vincent entered a conditional guilty plea reserving the right to appeal; the Supreme Court affirmed the denial of suppression, concluding Vincent was afforded a reasonable opportunity to consult counsel under the totality of the circumstances.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether Vincent’s statements (“talk to my attorney”) triggered the limited statutory right to a reasonable opportunity to consult counsel before a chemical test	City: Even if Vincent mentioned an attorney, he was given a reasonable opportunity to contact counsel (deputy called the number).	Vincent: His statements invoked the right and the deputy should have clarified and afforded further opportunity to contact counsel.	Court: It need not decide definitively whether the statements invoked the right because, under the totality of circumstances (including the deputy’s attempt to call the number Vincent gave), Vincent was afforded a reasonable opportunity to consult an attorney; denial of suppression affirmed.

Baillie v. Moore, 522 N.W.2d 748 (N.D. 1994) (any affirmative mention of need for an attorney requires officer to allow reasonable opportunity to consult counsel)
State v. Pace, 713 N.W.2d 535 (N.D. 2006) (officer’s attempt to call attorney and lack of further assistance requests can satisfy reasonable-opportunity requirement)
Washburn v. Levi, 872 N.W.2d 605 (N.D. 2015) (a request for counsel must be unambiguous; when ambiguous, officer should seek clarification before denying the right)
Kasowski v. N.D. Dep’t of Transp., 797 N.W.2d 40 (N.D. 2011) (ambiguous statements do not require suppression when officer reasonably interprets them)
Lies v. N.D. Dep’t of Transp., 744 N.W.2d 783 (N.D. 2008) (reasonable-opportunity inquiry is fact-intensive and reviewed de novo; totality of circumstances governs)
Koehly v. Levi, 886 N.W.2d 689 (N.D. 2016) (the right to consult counsel before a chemical test is limited and must be balanced against need for timely, accurate testing)