Washburn v. Levi
2015 ND 299
| N.D. | 2015Background
- Officer found Washburn asleep in the driver’s seat of a parked car with the door ajar; officer smelled alcohol and Washburn refused field sobriety tests and was arrested for actual physical control while intoxicated.
- At the law enforcement center the implied-consent advisory was read multiple times; Washburn said he did not and would not understand it and never clearly agreed to chemical testing; record does not show whether any chemical test occurred.
- Officer’s reports and testimony were inconsistent about whether Washburn requested to speak with an attorney, asked to make a phone call, or said he wanted to call his father; officer began but did not complete arrangements for a phone call; no evidence that Washburn was actually allowed to call counsel.
- The Department revoked Washburn’s license for 180 days based on refusal to take chemical testing; a hearing officer found probable cause for actual physical control and that Washburn’s qualified right to consult counsel was not violated.
- The district court reversed the revocation, finding insufficient support for probable cause but agreed there was no counsel-rights violation; this appeal followed.
Issues
| Issue | Washburn's Argument | Department's Argument | Held |
|---|---|---|---|
| Whether probable cause existed for actual physical control of the vehicle | Hearing officer failed to address Washburn’s evidence; no probable cause | Probable cause existed based on sleeping in driver’s seat, open door, odor of alcohol | District court reversed on probable cause grounds; Supreme Court affirmed district court’s overall judgment without reaching that alternative ground (case resolved on counsel-rights issue) |
| Whether Washburn requested counsel triggering Baillie bright-line rule | Washburn contends his statements constituted an affirmative mention of counsel requiring opportunity to consult | Department contends statements were ambiguous or referred only to calling his father | Agency’s finding that Washburn requested counsel is supported by a preponderance of the evidence |
| Whether officers afforded a reasonable opportunity to consult counsel under Baillie | Washburn argues officers failed to provide any reasonable opportunity (phone arrangements not completed; no evidence contact occurred) | Department argues request was ambiguous,/or occurred after refusal and unrelated to test decision | Court held Baillie applies: any affirmative mention of an attorney requires reasonable opportunity; here officers failed to provide one, so revocation based on refusal cannot stand |
| Whether Washburn is entitled to attorney’s fees under N.D.C.C. § 28-32-50(1) | Washburn seeks fees because Department acted without substantial justification in revoking license | Department argues its action had reasonable basis in law and fact (hearing officer’s rationale) | Court denied attorney’s fees: although agency erred, its decision had a reasonable basis in law and fact, so action was substantially justified |
Key Cases Cited
- Baillie v. Moore, 522 N.W.2d 748 (N.D. 1994) (bright-line rule: any affirmative mention of an attorney requires a reasonable opportunity to consult before chemical testing refusal can support license revocation)
- Kasowski v. N.D. Dep’t of Transp., 797 N.W.2d 40 (N.D. 2011) (ambiguous requests for counsel may be reasonably construed by officers; ambiguous statements can defeat Baillie protection if officer’s interpretation is reasonable)
- Kuntz v. State Highway Comm’r, 405 N.W.2d 285 (N.D. 1987) (qualified statutory right to consult counsel before submitting to chemical testing requires reasonable opportunity if requested)
- Lies v. N.D. Dep’t of Transp., 744 N.W.2d 783 (N.D. 2008) (reasonableness of opportunity to consult counsel is assessed under totality of circumstances)
- Dunn v. N.D. Dep’t of Transp., 779 N.W.2d 628 (N.D. 2010) (administrative action is substantially justified if it has a reasonable basis in law and fact for purpose of awarding attorney’s fees)