Kooser v. State
2012 ND 101
| N.D. | 2012Background
- Lee was speeding on a motorcycle and was stopped; after failing sobriety tests he was arrested and agreed to an Intoxilyzer test.
- Arresting officer did not allow Lee to contact an attorney before administering the chemical test.
- Lee told the officer, while waiting in the patrol car, that he needed to have an attorney (Cash) give him a good try; officer understood this as a reference to Lee's attorney.
- District court denied Lee's motion to suppress the Intoxilyzer results; Lee pled guilty conditioned on his right to appeal the suppression ruling.
- Test results showed blood alcohol above the legal limit; Lee argued the right to consult with counsel before testing was violated; the court reviews Baillie and related cases to interpret the right and remedy.
- The Supreme Court affirms the conviction, holding Lee did not invoke his right to counsel before testing and thus suppression was not required.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Did Lee invoke the right to counsel before testing? | Lee’s statements about needing Cash to give him a good try invoked aid. | Lee did not expressly request to contact an attorney before testing. | No invocation found; not a request to consult counsel. |
| If invoked, was Lee entitled to a reasonable opportunity to consult counsel before testing? | Under Baillie, any mention of an attorney requires a reasonable opportunity. | No clear request to consult was made before testing. | Baillie’s rule applied only if invocation occurred; not invoked here; suppression not required. |
Key Cases Cited
- Baillie v. Moore, 522 N.W.2d 748 (N.D. 1994) (bright-line rule for invoking right to consult before chemical testing)
- Pace v. State, 713 N.W.2d 535 (N.D. 2006) (recognizes limited right to counsel before tests)
- In re R.P., 745 N.W.2d 642 (N.D. 2008) (scope of right to consult before testing; applicable to criminal cases)
- State v. Berger, 623 N.W.2d 25 (N.D. 2001) (right to consult before testing articulated; remedy suppression when infringed)
- Kasowski v. Dir. of Transp., 797 N.W.2d 40 (N.D. 2011) (confirms limited statutory right to consult before chemical test)