Marman v. Levi
2017 ND 133
| N.D. | 2017Background
- Early morning single-vehicle crash on Sept. 17, 2015; Matthew Marman was the driver and arrested after refusing an onsite breath screening.
- Deputy Thomas administered (and recorded) observations at the scene; Officer Cody Nuenthel took custody of Marman, transported him, and testified at the administrative hearing about both his own and Deputy Thomas’s observations.
- Marman refused both the onsite screening test and a subsequent chemical test; the Department suspended his license for 180 days.
- At the administrative hearing the hearing officer overruled Marman’s hearsay objection to Officer Nuenthel relaying Deputy Thomas’s observations, found reasonable suspicion and refusal, and sustained the suspension.
- The district court affirmed the administrative suspension; Marman appealed to the Supreme Court raising statutory, evidentiary, reasonable-suspicion, and constitutional challenges.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether officers must inform driver of right to "cure"/refuse-remedy before Dept. may suspend license | Marman: § 39-08-01(2)(b) requires advising of cure; same should apply to administrative suspension under § 39-20-14(3) | State: Castillo controls; no advisory required for administrative suspension | Affirmed: No cure notice required for Dept. suspension (followed Castillo) |
| Whether hearsay testimony (Officer relaying Deputy’s observations) was improperly admitted | Marman: Officer’s testimony about Deputy Thomas’s observations was hearsay and inadmissible, so no reasonable suspicion remained | State: Report and Notice form was admitted and provides prima facie evidence independent of testimonial hearsay | Affirmed: Court need not decide evidentiary error because Report and Notice prima facie evidence was unrebutted and sufficient |
| Whether law enforcement had reasonable suspicion to request onsite screening | Marman: Officer lacked reasonable suspicion of DUI to justify onsite test | State: Report and Notice showed crash, odor, poor balance, open container — sufficient for reasonable suspicion | Affirmed: Report and Notice established reasonable suspicion; Marman failed to rebut it |
| Whether implied-consent and refusal statutes are unconstitutional | Marman: Statutes permit unreasonable searches/seizures, violate substantive due process, and penalize withholding consent | State: Prior ND and U.S. Supreme Court decisions uphold statutes as constitutional as applied | Affirmed: Constitutional challenges rejected as previously decided (Birchfield and ND cases) |
Key Cases Cited
- Potratz v. N.D. Dep’t of Transp., 843 N.W.2d 305 (ND 2014) (standard of review for administrative agency findings)
- Deeth v. Dir., N.D. Dep’t of Transp., 857 N.W.2d 86 (ND 2014) (deference to agency factual findings; legal questions reviewed de novo)
- Barrios-Flores v. Levi, 2017 ND 117 (ND 2017) (interpreting § 39-20-14(1) to require reasonable suspicion before onsite screening)
- Castillo v. N.D. Dep’t of Transp., 888 N.W.2d 190 (ND 2016) (officers need not inform driver of right to "cure" for administrative license suspension)
- Dawson v. N.D. Dep’t of Transp., 830 N.W.2d 221 (ND 2013) (Report and Notice form is prima facie evidence once forwarded to director)
- Gillmore v. Levi, 877 N.W.2d 801 (ND 2016) (burden on driver to rebut prima facie evidence in Report and Notice)
- Garcia v. Levi, 883 N.W.2d 901 (ND 2016) (rejecting constitutional challenges to implied-consent laws after Birchfield)
- Birchfield v. North Dakota, 136 S. Ct. 2160 (U.S. 2016) (U.S. Supreme Court guidance on warrantless breath tests and implied-consent schemes)