Koehly v. Levi
2016 ND 202
| N.D. | 2016Background
- In July 2015 Dickinson police arrested Jesse Koehly for DWI and placed him in a recorded/monitored holding room at the station; he was given an opportunity to call an attorney but did not do so.
- Koehly made several phone calls to family/friends for ~40 minutes while an officer intermittently asked him to submit to a breath test. He initially declined, later asked for a blood test (denied), and ultimately agreed to a breath test only if the officer would stipulate in writing she had refused to allow a blood test. The officer treated this as a refusal.
- The North Dakota Department of Transportation held an administrative hearing and found Koehly had refused the breath test and the conditional assent did not cure the initial refusal; it suspended his driving privileges for 180 days.
- Koehly sought reconsideration from the agency (denied), appealed to the Stark County district court (which affirmed), and appealed to the North Dakota Supreme Court. Jurisdiction and timeliness of appeals were uncontested.
- The Supreme Court reviewed: (1) constitutional challenges to the implied-consent breath-test regime; (2) whether placing Koehly in a recorded room violated his limited right to counsel; and (3) whether his later conditional statement cured his earlier refusal.
Issues
| Issue | Koehly's Argument | Levi's Argument | Held |
|---|---|---|---|
| Whether implied-consent breath-test law violates federal or state constitutions | Koehly argued breath tests post-arrest violate constitutional search/seizure protections and amount to an unconstitutional condition under state constitution | State relied on Birchfield and prior ND precedent upholding breath tests and rejected unconstitutional-conditions theory | Court rejected Koehly’s constitutional challenges; declined to address late-raised state-search-law argument and found Birchfield dispositive |
| Whether placing arrestee in recorded/monitored room violated limited right to counsel | Koehly argued monitoring/recording could allow officers to overhear attorney calls, infringing the statutory limited right to consult counsel | State argued Koehly made no attempt to call counsel and thus cannot show prejudice or violation | Court declined to decide the hypothetical violation because Koehly never attempted to call a lawyer; no reversible error |
| Whether a conditional subsequent assent cured earlier refusal to take a chemical test | Koehly claimed his later agreement cured the initial refusal | State argued his assent was conditional (requested written stipulation) and reasonably construed as a refusal | Court held cure requires clear, unconditional consent; a reasoning mind could conclude Koehly’s conditional statement failed to cure the prior refusal |
| Standard of review for agency findings | Koehly effectively challenged agency factfindings | State defended agency factual conclusions and application of Lund factors | Court applied administrative-review standards and affirmed agency: findings supported by preponderance and conclusions reasonable |
Key Cases Cited
- Birchfield v. North Dakota, 136 S. Ct. 2160 (2016) (U.S. Supreme Court holding breath tests permissible as searches incident to arrest)
- Beylund v. Levi, 859 N.W.2d 403 (N.D. 2015) (rejecting unconstitutional-conditions challenge to implied-consent law)
- Gillmore v. Levi, 877 N.W.2d 801 (N.D. 2016) (rejection of similar constitutional challenges)
- Lund v. Hjelle, 224 N.W.2d 552 (N.D. 1974) (establishing factors for when a later consent cures an earlier refusal)
- Kuntz v. State Highway Comm’r, 405 N.W.2d 285 (N.D. 1987) (statutory limited right to consult counsel before chemical test)
- Maisey v. N.D. Dep’t of Transp., 775 N.W.2d 200 (N.D. 2009) (clarifying cure and consent requirements)
- City of Bismarck v. Bullinger, 777 N.W.2d 904 (N.D. 2010) (conditional responses may be interpreted as consent or refusal depending on circumstances)