Gillmore v. Levi
2016 ND 77
| N.D. | 2016Background
- On Feb. 14, 2015, Dickinson officer stopped Andrew Gillmore for poor signaling and fishtailing; officer smelled alcohol, observed watery eyes, and Gillmore admitted drinking.
- Gillmore failed several field sobriety tests and could not produce a result on the roadside breath screen after five attempts; he was arrested for DUI and refusal to submit to the onsite test.
- At the law enforcement center Gillmore agreed to and completed chemical testing on an Intoxilyzer 8000; two valid samples returned .082 BAC.
- The Department of Transportation suspended Gillmore’s license for 91 days; administrative and district courts affirmed.
- Gillmore appealed, raising voluntariness of field tests, adequacy and wording of the implied consent advisory, alleged deviation from approved Intoxilyzer procedure, machine margin-of-error, and constitutional challenges.
Issues
| Issue | Gillmore's Argument | Levi's Argument | Held |
|---|---|---|---|
| Voluntariness of field sobriety tests | Tests were not voluntarily submitted to; hearing officer failed to find on voluntariness | Officer had reasonable grounds; Gillmore did not rebut consent evidence | Affirmed — no evidence of involuntary submission; agency findings supported by record |
| Implied consent advisory after arrest | Officer failed to read advisory after arrest, invalidating test | Report and notice form shows advisory was given; Gillmore failed to rebut prima facie evidence | Affirmed — Gillmore did not rebut the form; single recitation sufficed under law then |
| Advisory wording coercive/misleading | Advisory falsely stated law requires testing, so consent was coerced | Advisory informs of legal requirement and consequences, presenting a choice | Affirmed — advisory not misleading; prior precedent rejects coercion claim |
| Test administration instruction (“blow as hard as you can”) | Officer’s instruction deviated from approved method and invalidated result | Operator certified following Approved Method; phrasing not hypertechnical deviation | Affirmed — instruction did not constitute improper deviation; two valid samples obtained |
| Margin of error of Intoxilyzer 8000 | Result (.082) within device margin of error (.003) could reduce BAC below .08 | Gillmore failed to present admissible expert proof of device error or downward adjustment | Affirmed — no admissible expert proof of margin-of-error; result stands |
| Constitutional challenges (various) | Suspension violates federal/state constitutional provisions | Existing precedent upholds implied consent scheme and refusal/criminal statutes | Affirmed — court declines to revisit settled precedent; rights not violated |
Key Cases Cited
- Deeth v. Dir., N.D. Dep’t of Transp., 857 N.W.2d 86 (explains deference to agency factual findings)
- Haynes v. Dir., Dep’t of Transp., 851 N.W.2d 172 (agency factual determinations entitled to great deference)
- Wampler v. N.D. Dep’t of Transp., 842 N.W.2d 877 (standard for reviewing agency factual conclusions)
- Power Fuels, Inc. v. Elkin, 283 N.W.2d 214 (articulates "reasoning mind" preponderance standard)
- Obrigewitch v. Dir., N.D. Dep’t of Transp., 653 N.W.2d 73 (district court analysis afforded respect)
- Vanlishout v. N.D. Dep’t of Transp., 799 N.W.2d 397 (agency conclusions on law reviewed de novo)
- McCoy v. N.D. Dep’t of Transp., 848 N.W.2d 659 (consent not coerced by implied consent advisory)
- Buchholtz v. Dir., N.D. Dep’t of Transp., 746 N.W.2d 181 ("scrupulous" compliance not "hypertechnical")
- Olson v. Levi, 870 N.W.2d 222 (upholds implied consent laws against constitutional challenge)
- State v. Smith, 849 N.W.2d 599 (implied consent advisory and voluntariness issues)
- Beylund v. Levi, 859 N.W.2d 403 (rejection of unconstitutional-conditions challenge)
- State v. Baxter, 863 N.W.2d 208 (due process challenges to refusal statutes rejected)
- State v. Kordonowy, 867 N.W.2d 690 (refusal statutes not unconstitutionally vague)