Herrman v. Director, North Dakota Department of Transportation
2014 ND 129
| N.D. | 2014Background
- At 8:00 p.m. on May 30, 2013, Deputy Holtz observed Herrman weaving on I-94 and stopped him at 8:13 p.m.
- Herrman admitted drinking; he failed field sobriety tests; an onsite breath test at 8:20 p.m. showed BAC .196 and he was arrested for DUI.
- Herrman contacted an attorney; at 8:50 p.m. he indicated he contacted counsel and Deputy Holtz read the implied-consent advisory again.
- Herrman refused a second breath test; Deputy Holtz did not obtain a warrant and did not perform another test; Herrman was taken to jail.
- A Department hearing revoked Herrman’s license for one year for refusing the chemical breath test; the district court affirmed.
- Herrman appeals, challenging the legality of the arrest, the implied-consent process, and his right to consult counsel.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Probable cause without onsite screening | Herrman argues onsite screening was necessary for probable cause. | Holtz had probable cause from odor, signs of impairment, and drinks admission; screening not required. | Probable cause existed without considering onsite screening. |
| Unconstitutional condition under implied consent | Implied consent coerces surrender of the right to be free from unreasonable searches. | Implied consent is valid; does not violate constitutional rights when properly applied. | Court declines to address; confirms validity while relying on other grounds. |
| Right to consult an attorney before testing | Herrman was not afforded a reasonable opportunity to consult with an attorney before testing. | Herrman had a reasonable opportunity; attorney was available by phone during the process. | Herrman was afforded a reasonable opportunity to consult an attorney. |
| Authority to revoke for refusal | Refusal to submit to testing supports license revocation under statute. | Testing demand and refusal fall within statute and agency rules. | License revocation for one year appropriate and affirmed. |
Key Cases Cited
- McCoy v. N.D. Dep’t of Transp., 2014 ND 119 (N.D. 2014) (implied consent; actual consent avoids implied-consent framework)
- Baillie v. Moore, 522 N.W.2d 748 (N.D. 1994) (right to consult attorney before testing; mixed question de novo review)
- Kuntz v. State Highway Comm’r, 405 N.W.2d 285 (N.D. 1987) (reasonable opportunity to consult attorney before deciding to test)
- Jerome City v. City, 2002 ND 34 (N.D. 2002) (probable cause for traffic stop; Terry stop framework)
- Grove v. City of Devils Lake, 2008 ND 155 (N.D. 2008) (signs of impairment and odor as factors for probable cause)