Wilson v. State
2012 ND 96
| N.D. | 2012Background
- Bell’s driving privileges were revoked for one year after a DUI stop and administrative hearing upheld the Dept. of Transportation’s decision.
- Stop occurred Oct. 2, 2010; Bell showed signs of intoxication; field tests administered; Bell refused the onsite screening but agreed to more tests.
- Bell asked to consult an attorney before a chemical test; two-hour testing window began when Bell was in custody or in control of a vehicle.
- Bell was provided a telephone and telephone book at the correctional center; he ultimately sought to contact an attorney.
- Administrative hearing found Bell’s conduct during the stop was designed to delay the investigation; the two-hour deadline for testing was imminent.
- District court affirmed the DOT decision; Bell appealed on multiple grounds related to counsel access and timing.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Bell had a reasonable opportunity to consult an attorney before testing | Bell contends no reasonable opportunity. | DOT argues opportunity was reasonable under totality of circumstances. | Bell had a reasonable opportunity. |
| Whether Bell’s behavior delayed the investigation to defeat testing | Bell argues no delay intended. | Record shows attempts to deflect focus and delay. | Reasonable mind could find delay. |
| Whether Bell was provided a telephone and book at 8:09 p.m. and thus had time to call counsel | Bell was not timely informed or given access. | Witnesses placed Bell at the booking area with a phone book. | Providing phone access at 8:09 p.m. was sufficient. |
| Whether Miranda warnings were required before the implied-consent advisory in this context | Miranda warnings should precede counsel advisory. | MirrorHa; Miranda warnings not required before implied consent advisory. | Miranda warnings not required for counsel-access issue. |
Key Cases Cited
- Kuntz v. State Highway Commissioner, 405 N.W.2d 285 (N.D. 1987) (right to consult counsel before testing is qualified and not to hinder testing)
- Lies v. Dir., N.D. Dep’t of Transp., 2008 ND 30 (N.D. 2008) (reasonable opportunity assessed by totality of circumstances)
- Wetzel v. N.D. Dep’t of Transp., 2001 ND 35 (N.D. 2001) (defer to agency findings; weight of evidence standard)
- Boyce v. Backes, 488 N.W.2d 45 (N.D. 1992) (informing arrestee about time to contact attorney not mandatory)
- State v. Haibeck, 2004 ND 163 (N.D. 2004) (Miranda warnings not required before implied-consent advisory)