Fossum v. North Dakota Department of Transportation
2014 ND 47
N.D.2014Background
- Officer Bohn stopped 20-year-old Scott Fossum for speeding, smelled alcohol, administered HGN and screening tests, and issued a temporary permit.
- Fossum submitted to an S-D5 on-site breath screening (result .079) and later to an Intoxilyzer at the station (result .085/.08 within two hours).
- The hearing officer found Fossum consented to the Intoxilyzer, admitted the Intoxilyzer result, and suspended Fossum’s license for 91 days under the minor zero-tolerance rule.
- Fossum sought reconsideration and then appealed to district court, arguing the implied-consent statute (N.D.C.C. § 39-20-01) required an arrest and advisement before chemical testing; district court reversed the suspension.
- The Department appealed to the North Dakota Supreme Court, which reversed the district court and reinstated the suspension, holding consent to testing made the implied-consent arrest/advisement requirement inapplicable.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether implied-consent statutory requirements (arrest + advisement) were required before chemical testing | Fossum: Officer failed to advise he was being charged with DUI before testing, so Intoxilyzer results were inadmissible | DOT: Fossum voluntarily consented to testing; implied-consent procedural prerequisites do not apply to voluntary consent | Court: Voluntary consent makes § 39-20-01 inapplicable; Intoxilyzer admissible and suspension reinstated |
| Whether the on-site S-D5 screening could justify the subsequent Intoxilyzer | Fossum: Timing of S-D5 relative to formal detention unclear, so screening result should be disregarded | DOT: S-D5 and other observations supported further testing; screening is for establishing probable cause | Court: S-D5 relevant only to probable cause; Intoxilyzer alone supported finding of BAC ≥ .02 for minor zero tolerance |
| Standard for voluntariness of consent to chemical testing | Fossum: Consent was not voluntary if officers failed required advisements | DOT: Totality of circumstances show Fossum freely consented | Court: Applying totality-of-circumstances and deference to hearing officer, consent was voluntary |
| Whether advisement of “minor zero tolerance” satisfied statutory notice | Fossum: Statute requires advising person they are or will be charged; zero-tolerance is noncriminal so advisement was inadequate | DOT: Advisement of ‘‘minor zero tolerance’’ sufficiently informed Fossum of the reason for detention/testing | Court (concurring): Advisement was adequate under the circumstances; even if phrasing imperfect, it conveyed the reason for detention |
Key Cases Cited
- City of Bismarck v. Hoffner, 379 N.W.2d 797 (N.D. 1985) (implied-consent statute does not apply where driver voluntarily consents to testing)
- State v. Abrahamson, 328 N.W.2d 213 (N.D. 1982) (same principle: voluntary consent renders implied-consent procedures unnecessary)
- Asbridge v. N.D. State Highway Comm’r, 291 N.W.2d 739 (N.D. 1980) (on-site chemical screening tests are for establishing probable cause and to determine need for further testing)
- State v. Anderson, 336 N.W.2d 634 (N.D. 1983) (voluntariness of consent assessed under totality of circumstances; great deference to trial court findings)
- Schneckloth v. Bustamonte, 412 U.S. 218 (1973) (voluntariness standard for consent under totality of circumstances)