918 N.W.2d 43
N.D.2018Background
- Deputy stopped Jim DeForest for speeding; DeForest showed signs of intoxication and was arrested for DUI.
- Deputy read Miranda warnings and an implied consent advisory, but omitted the sentence stating refusal of breath or urine tests is a crime punishable like DUI.
- Deputy requested a blood test; DeForest had earlier asked for a chemical blood test and he consented to blood draw.
- At the administrative hearing, DeForest objected that the implied consent advisory was incomplete and moved to exclude the blood-test result; the hearing officer admitted the result and found the advisory complied with N.D.C.C. § 39-20-01(3)(a).
- The district court reversed, excluding the blood result and reinstating DeForest’s driving privileges; the Department appealed.
Issues
| Issue | DeForest's Argument | Department's Argument | Held |
|---|---|---|---|
| Whether the blood test result is inadmissible because the implied consent advisory omitted warning that refusal of breath or urine tests is a crime | The advisory was incomplete under State v. O’Connor and § 39-20-01(3)(a), so the test result is inadmissible | The advisory complied with the statute as amended in 2017; the blood result is admissible | The Court held the advisory satisfied § 39-20-01(3)(a); blood result admissible and suspension reinstated |
| Whether the 2017 amendment requires an officer to warn about criminal penalties for breath/urine refusals even when requesting a blood test without a warrant | The omission of that warning renders the test inadmissible regardless of the requested test type | The amendment’s conditional clause limits the warning when a blood test is requested (no criminal-penalty warning before a warrant) | The Court held the conditional clause qualifies the mandatory warning; when requesting blood, the officer may not inform of criminal penalties until a warrant is obtained |
Key Cases Cited
- State v. O’Connor, 877 N.W.2d 312 (N.D. 2016) (earlier decision holding incomplete implied consent warning rendered test inadmissible)
- Birchfield v. North Dakota, 136 S. Ct. 2160 (U.S. 2016) (distinguished warrant and penalty issues for blood tests)
- City of Bismarck v. Fettig, 601 N.W.2d 247 (N.D. 1999) (later enactment may qualify or except an earlier provision)
- Haynes v. Director, Dep’t of Transp., 851 N.W.2d 172 (N.D. 2014) (standard of review for administrative license-suspension appeals)
- McCoy v. N.D. Dep’t of Transp., 848 N.W.2d 659 (N.D. 2014) (questions of law reviewed de novo)