Kasowski v. Director, North Dakota Department of Transportation
2011 ND 92
N.D.2011Background
- Kasowski appeals a four-year revocation of driving privileges for refusing a chemical test for intoxication.
- DOT hearing officer and district court affirmed the revocation, finding Kasowski was not denied a reasonable opportunity to speak with an attorney before testing.
- Officer Williams stopped Kasowski for crossing center line on I-94; detected odor of alcohol and observed signs of impairment.
- Kasowski expressed a desire to speak to an attorney; he was placed in a patrol vehicle in the sally port and later refused the Intoxilyzer after implied-consent advisories.
- Hearing relied on Williams’s testimony that Kasowski decided against contacting an attorney; Kasowski argued he was effectively under arrest and denied counsel.
- Court reviews under the Administrative Agencies Practice Act; affirms, holding Kasowski was afforded a reasonable opportunity to consult counsel.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Kasowski was denied a reasonable opportunity to consult an attorney before testing | Kasowski was not afforded effective access to counsel | Kasowski had a reasonable opportunity to contact an attorney and declined | Not denied; Kasowski was offered a reasonable opportunity |
| Whether Kasowski was effectively under arrest when he requested counsel | Requests to speak to an attorney attached the right prior to testing | Kasowski was not under arrest; any contact with counsel was not required | Court affirms revocation; whether arrest or not, no denial of reasonable opportunity |
| Whether the jail conversation rendered Kasowski’s later statements ambiguous about seeking counsel | Ambiguity should not defeat a request to consult counsel | Kasowski’s statements at the jail were ambiguous and thus did not invoke the right | Ambiguity applies; cannot rely on later statements to claim right |
| Whether the DOT’s interpretation of Kasowski’s communications was reasonable | Officer Williams should have read ambiguous statements as a request for counsel | Officer Williams reasonably understood Kasowski’s statements as a decision against counsel | Reasonable interpretation supported; afforded opportunity |
Key Cases Cited
- Lies v. N.D. Dep’t of Transp., 2008 ND 30 (ND) (reasonable opportunity to consult counsel required; deference to agency findings)
- Eriksmoen v. N.D. Dep’t of Transp., 2005 ND 206 (ND) (statutory right to consult attorney before testing arises after arrest)
- Baillie v. Moore, 522 N.W.2d 748 (ND 1994) (bright-line trigger for opportunity to consult an attorney when arrestee mentions attorney)
- Leno v. City of Mandan, 2000 ND 184 (ND) (right to consult attorney arises after arrest; not for on-site screening)
- Lange v. Dep’t of Transp., 2010 ND 201 (ND) (mixed questions of law and fact; reasonable opportunity assessed under totality of circumstances)
- Abernathey v. Dep’t of Transp., 2009 ND 122 (ND) (standards for reviewing administrative agency determinations)