Judicial Conduct Commission v. Hagar
2012 ND 19
N.D.2012Background
- Koenig appealed a district court judgment affirming a 91-day suspension of his driving privileges following a D.O.T. hearing officer ruling.
- On Jan. 16, 2011, Koenig was stopped for speeding and expired tabs; he showed signs of intoxication and performed field sobriety tests.
- He was arrested for DUI at 12:47 a.m. and submitted to a blood test, yielding a .12% BAC.
- Koenig requested an independent blood test; officers assisted by providing contact access and locating hospital resources, while Koenig remained in custody.
- Koenig was released around 5:00 a.m. on a promise to appear; the test results were admitted at the hearing, and Koenig argued the opportunity to obtain an independent test was not reasonably provided.
- The hearing officer denied suppression and suspended Koenig’s license for 91 days; the district court affirmed.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Koenig was afforded a reasonable opportunity to obtain an independent test | Koenig denied a reasonable opportunity | Officers provided reasonable opportunity via access to phone and hospital info | Officers afforded a reasonable opportunity to obtain an independent test |
| Whether law enforcement had a duty to transport Koenig for the independent test | Koenig's duty to secure transport rests with police when arrangements fail | No duty to transport; arrestee bears cost and responsibility for arrangements | No duty to transport; Koenig failed to compel transport despite arrangements |
Key Cases Cited
- State v. Messner, 481 N.W.2d 236 (N.D. 1992) (independent test right is arrestee’s right to be free of police interference)
- Lange v. N.D. Dep’t of Transp., 2010 ND 201 (N.D. 2010) (officers must not hinder but may not transport; access to telephone may be sufficient)
- Luebke v. N.D. Dep’t of Transp., 579 N.W.2d 189 (N.D. 1998) (totality of circumstances governs reasonable opportunity to obtain independent test)
- Abernathey v. N.D. Dep’t of Transp., 768 N.W.2d 485 (N.D. 2009) (standard for appellate review of administrative findings)