*1 COLLING, Petitioner Maurice Respondent, Highway HJELLE, Com- State as
Walter R. of North Dakota and the State missioner of Safety Ferguson, Director of the W. W. Highway Responsibility for State Division Appellants. Commissioner, Respondents and
No. 8088.
Supreme North Dakota. Court of
Dec. 1963.
Rehearing Jan. 1964. Denied *2 Johanneson, Gen., and Helgi Atty. R. Jon Bismarck,
Kerian, Gen., Sp. Atty. Asst. respondents appellants. and MORRIS, Chief Justice.
This is appeal Highway the State Safety Commissioner and director of the Responsibility Division from an order County the District re- Burleigh Court of versing Highway an order of the State Commissioner which revoked motor vehicle operator’s license number issued to Colling. Maurice The the district order of Colling. court also restored the license to revoking license, Highway the State purported pursuant Commissioner to act 39-20, Chapter NDCC, Chap- as amended ter Laws Upon Session N.D.1961. license, revocation of his Colling driver’s requested granted and was a hearing before pursuant the Commissioner 39- 20-05, petitioned NDCC. then Colling district court for a review of the adverse determination Highway State Com- pursuant 39-20-06, mission to Section ND Under CC. that section the district court required determine the matter Commissioner, record made before and no additional evidence be heard. hearing in district court At transcript presented was only evidence Templeton testimony patrolman Department. sum- We Police the Bismarck testimony. December On marize m., patrol- a. o’clock at about two High- Colling driving west on man observed Bismarck, approaching the and 10 in way Bridge spans the Missouri Memorial Burleigh County Bismarck between River county of Morton. The adjacent point of observation was speed limit at Colling was per hour and 25 miles patrolman limit. double about bridge across the Colling into the followed Morton, where he county of adjacent patrolman officer. apprehended car and get out of his walk Colling to asked car. He was patrolman’s weav- Bismarck, Chapman, peti- back & Rausch strong there was a staggering, respondent. tioner only demand could legally him. On smell of alcohol about made for license. patrolman his driver’s showed officer and *3 acquittal the car and They patrolman’s sat in the establishes that no offense was patrolman Colling was under presence told that he committed in the of the arrest- under the officer and driving legal arrest for a vehicle while therefore no arrest liquor. patrol- could The be made influence of alcoholic a warrant. On the hand, police other Colling man to the Bismarck the drove contends Commissioner that regardless a station, him to take of acquittal, and there he asked the arrest was test, legal Colling refused because which “drunkometer” facts are such that patrolman patrolman filled out grounds do. Thereafter had reasonable to believe that Colling Colling had effect that was driving affidavit to the his motor vehicle while to submit to under been arrested had refused and influence of liquor, test, to the and any which affidavit he mailed acquittal event is not Safety Responsibility High- Division of conclusive in this proceeding and is not way Department. patrolman binding also tes- The on the Commissioner. subsequent hearing that at on the tified authority of an officer to make guilty.” not Colling matter “Mr. was found an arrest without a warrant is derived from drove across Colling He also testified that as statutes and varies in different be states bridge weaving his car almost cause statutory of different provisions. Out right bridge he hit the side twice as of statute is 29-06-15, NDCC, and patrolman went war- across. The no provides: controlling rant of arrest. The issue this case Colling is whether time he “29-06-15. Arrest without warrant.— asked to take the “drunkometer” test was peace A officer, warrant, may without a Chapter under arrest as that term is used person: arrest 39-20, NDCC, as amended. of public offense, “1. For a committed Chapter (39-20-01, provides: NDCC) attempted presence; or in his operates “Any person a motor who “2. When the arrested has upon public of highways vehicle felony, committed a although not in his shall deemed this state be presence; subject provisions consent of test, chapter tests, or to chemical felony When “3. has fact been blood, breath, saliva, his or urine for of committed, and he has reasonable cause purpose determining of alco- to believe the arrested to have content his blood. The test holic or it; committed tests shall administered at the di- be upon “4. On charge, made reason- rection a law enforcement officer cause, able of the commission of a only person except placing after such arrested; felony by party or persons mentioned in 39-20-03 section him informing public offenses, For “5. such charged will with is or the offense classified as felonies and not committed driving being actual provided in his for under control of section 29-06-15.1.” under the highways influence of intoxicating liquor. arresting offi- above-quoted Paragraph 5 of the section shall determine which cer afore- 29-06-15.1, NDCC, refers to Section shall used.” said tests provides in turn that: expressed The trial court police the view officer at the scene of a “A traffic arrest, being warrant, made without a accident arrest without warrant subject provisions consent of this a non- any iswho of a vehicle driver tests, test, to a chemical is in- act and who state resident of this blood, breath, saliva, or urine for the based when
volved in the accident purpose determining has the alcoholic investigation, personal test, tests, content of his to be- blood. The grounds probable reasonable shall be administered at the direction person has lieve that the of a law having enforcement officer title provisions offense under the per- to believe the acci- of this in connection code son has or was in actual has reasonable dent, the officer *4 control a the of motor vehicle to believe probable grounds public highways the while promise under the person disregard a written will liquor.” intoxicating influence of appear in court.” to NDCC, 29-06-16, authorizes a Section original pas- during bill was amended person for peace night to arrest officer sage in respects. several material Par- the public without a warrant offense ticularly revealing as legislative intent attempted his was proposed was an amendment the senate presence, or judiciary committee to believe that “He has reasonable cause to ‘having reasonable the words “Delete has committed the arrested person has been the grounds to believe appears felony, afterwards though it physical con- in actual driving or was felony committed.” that the was not following words and insert the trol of' ‘only placing after in lieu thereof: only provision that we statutory This is the informing under arrest and such authorizes to find that have been able charged that will be him it after- though legalizes therefore an arrest ” driving.’ the offense of for which appears that crime wards committed, and arrest made was not was Legisla- of the 36th of the Senate Journal restricted specifically that authorization Dakota, Assembly of the State of North tive to felonies. By adopting this amendment page 456. required an arrest made
legislature empowered the officer was to direct legis before suggested that It has been chemical It of a test. the administration 39-20, Chapter in the enactment lature provision out the rejected and struck Implied Consent (known as the NDCC by an test could be directed to vest law enforcement Law), intended grounds to believe” the “having reasonable powers' than of arrest broader officers with driving a motor vehicle person had been misdemeanors. applicable to other those highway while under the influence upon the legislative However, the examination liquor. We also believe that comparison of the bill journals had in mind that if the arrest legislature finally with the law as originally introduced it a warrant must be for made without contrary, establishes enacted pres- of the offense commission arresting officer and such of the ence 39-20, Chapter ND pre- the offense was a basic commission of in the 1959 session of CC, introduced right require requisite to the Senate Bill No. 142. The as legislature apprehended take whom original bill read as section first prescribed by test the statute chemical follows: to do so to suffer refusal deprived being license to operates penalty person who motor “Any upon the high- a motor vehicle public highways of this drive upon the warrant way. The arrest without a to be shall be deemed to state “ * * *. pre- arrest when no effective must be a lawful offense has perpetrated, not made because warranting scribed statute and one circumstances believe the officer had reasonable that it was commit- belief person apprehended had committed will justify not mak- ted the officer in intoxicated. offense of the arrest without warrant.” support of this the author cites statement importance lawfulness of Mobley, State v. S.E.2d N.C. emphasized arrest is the fact that 100. only not affects the revocation operator’s license, but to the ad extends Law, Torts, In Restatement of the Sec- missibility of the refusal to submit o, tion under Illustration it is said: test or tests as evidence in other cases under “To an- privilege create to arrest 39-20-03, provides: other, enough actor under arrest “If refuses private person peace —whether a or a *5 tests, proof submit to the test re- of suspects reasonably the officer— fusal shall admissible in civil or committing other is a breach of the proceeding criminal action or arising peace, except (a), stated in Clause alleged out of acts have been com- in and 121(c) Section the actor where mitted the was peace par- is a officer and he arrests in actual of control a vehicle ticipant affray. an in in fact no If highways the while under peace breach of the has commit- been liquor, pro- the influence of ed, part mistaken belief on the of vided the first have testi- shall actor, the by induced whether mistake in the fied action.” law or of of fact and however rea- sonable, peace breach has of the provisions Section 39-20-11 the of makes other, been committed the does chapter applicable the prosecutions for confer a arrest privilege to municipal violations of prohibit- ordinances (c).” Clause driving or the control aof motor ve- hicle while under the influence intoxi- of The law respect legality to the liquor. cating The latter section was not in arrests is sometimes confused with the law original bill as introduced. It was add- pertaining prosecution to malicious where ed amendment during passage. applies. different rule The different rules are well Arrest, 32, Mehlman, illustrated in Muniz Am.Jur.2d, Section v. is In 5 327 Mass. 99 N.E.2d which involv- said: ed a count imprisonment for arrest false view, who “According to one an officer and a prosecution. count for malicious warrant on a misde- arrests The distinction peril, between charge appli- since acts at his rules meanor to the cable two counts pointed is unlawful of- will be if the out in arrest at note the bottom committed, page 359, actually not even 327 Massa- fense was chusetts, page 41, N.E.2d, says: acts though on reasonable good in faith. Under this important “It is keep this distinc- acquittal view, been held that it has tion mind. example, For in conclusively misdemeanor shows present case there was evidence in the unlawful, been al- to have arrest court prove below tending to authority is also though there plaintiff did not in fact commit of- contrary.” fenses for which complaints were brought, Criminal Law find Wharton’s We there was also evidence (Anderson), question that he did. Procedure But was not inadmissibility- after evidence guilty but in fact was whether he invalidity acquittal which probable establishes defendant whether arrest, in the absence of the holds that was. In he believe cause to acquittal validity question issue imprisonment the count for false courts to de- There, is for Federal one since just reverse. misdemeanors, is- cide the basis of the evidence therein were arrests produced. but cause probable that of sue was not fact com- plaintiff had whether Edgin Talley, 169 Ark. 276 S. which he offenses mitted the W. 591, 42 A.L.R. it is said: arrested.” “ * * * a misdemeanor must have 41, Mun- Arrests, Am.Jur.2d, In 5 actually justify committed to support Mehlman, supra, cited iz v. warrant, arrest without a and the offi- following statement: peril cer must determine wheth- an offense er has been committed or cause probable jurisdictions, “In some not.” a ve- stopping justify an officer will con- driver’s investigate hicle to divergence The seeming authority in- goes dition; further but quotation dicated the above from Ameri- no probable cause arrest, makes the Jurisprudence mainly can among found show that and he enough, must longer dealing liability the cases with the for dam- *6 was the arrest for the offense ages of growing out actions for false arrest actually committed.” made was imprisonment, and ques- false but here the damages tion is not one of but deter- one of Ky., 337 Robey, v. In Commonwealth mining legislature the intention of the as 34, said: it is S.W.2d by indicated the original amendments to the during bill the course of Common- enactment. The v. Parrott such cases as “In duty of legislature 440, the least two- Common- wealth, Ky., 287 S.W.2d provide protection fold : to Ky., 296 S.W.2d Vaughn, wealth v. safety Commonwealth, persons legitimately for using the v. 220, Thomason public highways by from hazardous 104, driving have held that we Ky., 322 S.W.2d others, safeguard and to rights per- made incident the been of where a search has sons to whom granted the state had per- the evidence obtained to an arrest right sonal and valuable prose- of operating in a ve- is not admissible search hicles from unwarranted of disclosed forfeitures an offense cution. for their licenses. Recent empha- cases charge of the have was made if a search, importance sized the of protecting made arrest was the lat- which the offense for right. ter acquitted In Moseng, State v. Minn. been 254 defendant has and the 95 N.W.2d it is said: charge still or charge on that a search reason pending. The “Much has been said as to whether only can made a warrant be without operate a a motor license to vehicle is arrest, if there incident a lawfitl privilege. right a a It or has acquittal charge of of been an has variously a privilege denominated as which the arrest was for offense right nature of a in im- as an pending made, charge is or the portant privilege right or under our cannot trial, the arrest legality of present living. mode of No one will be established.” deny that we have reached time in way Sykes, Cir., our modern life However, 6 of when mo- United States clearly court, tor con- vehicle has become neces- Federal F.2d 305 many people. Kentucky respect sity very liveli- ceding rule probable chauffeurs, able cause. The arrest could many, such hood only be made salesmen, without a warrant for an of- who men truckers, traveling presence fense labor, committed in the of the de- offi- unskilled in skilled or work cer. The if refusal to take test he was motor operation upon pends lawfully arrested for an are licenses Their drivers’ vehicle. presence in the subjected engage license to as a just as valuable licensee mandatory op- revocation of his Clear- profession. occupation or in an erator’s law, license for six months. The liberty and right ly inalienable one’s further, proof made of refusal if admissible curtailed pursuit happiness is any civil proceed- or criminal action or kept off the unreasonably be ing arising out of the acts which h'e was by him as a citi- maintained highways alleged to committed while recently taxpayer. said zen and It in actual control of a vehicle Cir., F.2d King, Wall v. highways while under the influence of make use of that ‘the freedom to intoxicating liquor provided that he had a motor property, own here ve- one’s testified in the His action. refusal was hicle, about from getting as means of prosecution also made any admissible in pursuit place, place to whether municipal violation of a pro- ordinance “liberty” pleasure, is a business hibiting the driving or control of a motor Amend- which under the Fourteenth vehicle while under the influence of intoxi- curtailed denied or ment cannot be liquor. cating case, In this at the time the process law.’ state due hearing was held Maurice Colling had been event, right a citizen acquitted charge for which he was high- a motor drive placed under arrest. The officer had no against safeguarded ways is to be warrant. The charged crime was one for caprice police or adminis- whim or which lawful could only made clear trative officers. It is therefore committed in of the officer. that, whether driver’s license *7 acquittal The established that the crime ‘privilege’ ‘right,’ aor such termed charged had not been committed either in license, not, whether or restricted once the of the officer or otherwise. of granted, substantial the value to That determination by was made a court. holder thereof and sus- be could It neither be reversed ignored nor pended arbitrarily capri- or revoked or a hearing before an administrative offi- ciously only but manner on the cial who conducted hearing, presented the provided by law.” the evidence, the questioned witness, the made the quasi-judicial effect same see Bechler v. determination To the Parse resulted in the revoking order operator’s 470; A.2d Wignall 176 kian, N.J. agree We license. with the trial court that Fletcher, 303 N.Y. N.E.2d 728. the order of revocation issued the State Highway Commissioner was properly re- importance guilt of of a versed. The order of the district court is apprehended upon person whom a de affirmed. made to test or mand was take tests prescribed by Chapter intoxication 39- STRUTZ, and BURKE, TEIGEN JJ., NDCC, apparent must have been concur. very from of terms the law legislature enacted, for it being was amend could provide that a test be admin ed to ERICKSTAD, (dissenting). Judge only placing person after under istered law authorized an attempt No officer to In an to reduce arrest. holocaust of which upon suspicion highways, part or our due reason- on to make the afore legislature amended When the freely of imbibed too who has the driver upon adoption prior its described section “Implied liquor, the so-called intoxicating' Judiciary the Senate recommendation of legisla- enacted our Consent Act” was be ad- require that the test Committee to ture in 1959. person only placing the after ministered informing that he is him under arrest and is now con- said act first section of offense charged with the or will be North 39-20-01 of tained physical control being or in actual driving fol- Code, which reads as Century Dakota public upon highways while of vehicle lows : liquor, under the influence protect driver legislature intended to Implied deter- consent to “39-20-01. incon- of a from the irritation and vehicle Any content of mine alcoholic blood.— venience to chemical tests submitting operates a motor person who vehicle might required whim which be at the mere state highways of this aof law enforcement officer. to have consent be deemed shall chap- provisions of this subject By per- requiring place the officer to test, tests, of his chemical or ter to a son under arrest and by requiring him blood, saliva, breath, or urine for specific inform the arrested purpose determining the alcoholic offense with which be he was or would test tests his blood. The content of charged, required the officer was to exer- direction shall administered judgment cise such protect would him a law after only enforcement liability from in the event were except persons placing such for this arrest subsequently for false sued mentioned section 39-20-03 arrest. informing him that he is arrest and merely This amendment clarified the fact charged will with the an arrest be made. did not must It being in actual con- change the arrest and the basis public high- trol of a right request to take the test. ways under the influence of in- This is indicated 39-20-04 of toxicating liquor. The arresting Century Code, pertinent North Dakota afore- shall determine part which reads as follows: be used.” said shall tests “ * * * under arrest If section, operate all who Under chemical test- to submit refuses *8 upon highways the of our vehicle motor given, be but the state shall ing, noire to to given are deemed consent state upon commissioner, re- the highway breath, blood, test of their chemical report of the en- sworn law ceipt of a purpose for urine the of deter- saliva or he had officer that reason- forcement alcoholic content their blood. mining the of arrested grounds to believe the able “subject is deemed Consent driving been was in person had chapter.” provisions of The refer- this of a motor vehi- physical control actual “chapter” Chapter is to to of ence 39-20 public highways un- upon the while cle Century Dakota North Code. the intoxicating liquor, of influence the der person refused had to sub- that the arrest, petitioner Colling’s At the time of tests, test or shall revoke his the mit to chapter contained twelve The sections. said permit to drive non- license provisions chap- to “the of this reference peri- operating privilege resident therefore, ter,” provisions included the of * * months; *.” six od of chapter the sections of as well the other as definitely ties section This North 39-20-01 of the provisions grounds believe.” It to “reasonable Century Code. Dakota highway providing scope com- for the of the hear- obviously means ing, driver’s legislature require revoke the re- required to did missioner person viewing he receives permit officer to conduct a trial of the license or of a person charged, of- report law enforcement the criminal a sworn of a authority but grounds require it did reviewing reasonable ficer that the officerhad driving to determine person been whether the law enforcement had to believe a motor “had physical grounds control of to believe or was in actual un- highways driving upon public while been was in ac- vehicle tual liquor upon intoxicating control of vehicle der the influence of public per- that, highways upon basis, arrested the under the influence while this liquor.” test, received son, him asked to take a refusal. The hearing shows clearly record that the law enforcement had reason- words interesting It is to note grounds able Colling, believe that in the n “arrested part bill person” were officer, had been that no introduced and originally it was as highways un- language this change in the was made der the liquor. influence of intoxicating was made to section after the amendment Bill which of Senate No. Concededly, hearing officer was also Dakota the North is Section 39-20-01 to decide whether driver had or had Century Code. not been finding arrested. The driver, Colling, amply had been arrested is noted that infer- It should be further no supported arrest, The record. which section, ence can be drawn from was without a warrant —and in all almost establishes the basis for revocation of must, cases, these necessity, arrests be permit, that the revo- driver’s license or made by warrants-—was en- law cation or decision revoke shall be held forcement officer who had reasonable abeyance has until either been grounds that the believe arrested acquitted (cid:127)convicted or of the criminal of- had, presence, committed the crime charged. fense charged. scope hearing of the administrative The third and matter last to be con- available to has whose license sidered hearing at the was whether the failing revoked for a test take driver had been to submit asked to the test required by set forth the act is in Section or tests and had refused submit thereto. Century 39-20-05 of North Dakota That take Colling was asked to the test and part opinion Code. The material to this refused is not denied. reads follows: proof legislature Further intend- “ * * * required ed that the arrest hearing “reason- shall tran- able is the to believe” fact that the scribed and scope its shall cover the *9 original original provid- section of the bill issues of whether a law enforcement scope ing hearing required for the of the officer had grounds reasonable to be- hearing that the cover the same three issues person lieve the been driving had they in the same are order as contained to- was in actual control of a day in Section of the 39-20-05 North Da- public highways while Century kota Code. under the influence person liquor; placed whether the was York was The State of New one of the arrest; and, pass implied under whether he refused states to first an consent law. ” * * * act, Chapter Its first 854 of the submit test or Laws of to tests. of sub- hearing. provisions 1953,* such contain re did not New York five and six section seven- placed divisions quirement first person be applicable ty-one of this law shall be report of the officer arrest, under this section. sworn, and to revocations to the Commission be * n * ” York, 1954, revoca Laws of New person prior hearing to Chapter short 320. These tion of his driver’s license.
comings
the case of
pointed out in
were
amended
Following
enactment
Special
MacDuff,
Court,
Supreme
Schutt v.
v.
law,
Combes
the case of
version
1954,
2,
Term,
Orange County, Jan.
Ni
Term,
Court, Equity
Supreme
Kelly,
43,
Misc.
116.
127 N.Y.S.2d
1956, Misc.
County,
decided
agara
was
in
That case
491,
2d
465
573,
Murphy,
page
is cited
States v.
290 F.2d
at
A
court case which
Federal
575,
holding that
the court
support
state
said:
courts
person may
a warrant
be arrested without
“The
Court made
clear in Carroll
when
the commission of a misdemeanor
States,
132,
1925,
v. United
U.S.
267
has reasonable
law enforcement officer
156-157,
280,
543,
45 S.Ct.
69 L.Ed.
believe
probable
cause to
that an
can
arrest
make an
presence
in
offense was committed
without
securing
first
a warrant where
States,
is
8
case
v. United
of Garske
probable
he has
cause to believe that a
Cir.,
now
throughout
United States that
guilt.
States,
Brinegar
1949,
v. United
crime,
for a
which they
probable
160,
338 U.S.
69 S.Ct.
L.Ed.
93
cause
being
to believe is
committed in
1879. On
hand,
the other
a mere
presence,
their
though it be a misde-
inkling
suspicion
enough.
meanor, duly
peace
authorized
officers
Walker,
United
Cir., 1957,
States v.
7
may make arrest without a warrant.
246 F.2d
cause,’
519. ‘Probable
Justice
probable
justify
cause which will
Douglas
said
Henry
United
v.
arrest
for a misdemeanor
without
States, 1959,
98, 102,
361 U.S.
80 S.Ct.
judgment
warrant must be a
based on
168, 171, 4
L.Ed.2d
‘exists if the
personal
acquired
knowledge
facts and circumstances known to the
senses,
through
time
or inferences
prudent
officer warrant a
man in be-
properly to be drawn from the testi-
lieving that the offense has been com-
mony
suspicion
senses. Mere
”
* * *
mitted.’
enough
is not
to justify arrest without
a warrant
for a
misdemeanor and
Twitchell, Wash.,
The case of
v.
State
search
force of the
so ar-
378 P.2d
rendered
interest-
rested.
ing
point
from another
view.
case,
prosecuted
the sheriff was
for will-
very
“The courts
generally hold that
prostitu-
neglect
duty
permitting
ful
an offense is committed within the
jurisdiction
tion to be carried on in his
officer when his senses
complaints
making
without
or arrests. At
afford him knowledge that such is the
case, Washington
page 448 of said
court
fact. O’Connor v. United States
said:
(D.C.)
396;
281 Fed.
United
States
appel-
contention
next
“The
(D.C.)
Borkowski
408;
Fed.
268
El
in instruct-
erred
the court
is that
123;
rod
lant
v. Moss (C.C.A.) 278 Fed.
arrest for
law of
jury
on the
Lambert v. United States (C.C.A.) 282
a warrant.
without
Fed.
misdemeanor
413.”
jury:
instructed the
court
many
sup-
cites
other
The said court
cases
“
prostitu-
practicing
‘The crimes of
porting this rule.
keeping of a house of
and the
tion
are Gross Misdemeanors
prostitution
opinion, Garske
The aforesaid
v. United
of this State.
the laws
States,
rendered
is referred
in a
“
case
to a
decided
footnote
police
‘A
entitled make
Appeals,
Court
States
United
Third
Gross
Misdemeanor
In the
although
entitled
case
United
a warrant
the one ar-
Circuit.
*13
he- witnesses.
of others which
conduct
violating the law
actually
rested is
are such would
the circumstances
If
in fact
if
the arrest
time of
at the
person to believe
cause a reasonable
lead a
to
such as
person’s conduct
his
in
being committed
that a crime is
believe
to
officer
reasonably prudent
be said
presence, then
officer can
person is violat-
that
faith
good
in
immune
and is
probable
to have
cause
presence.’
in
officer’s
ing the law the
liability
acting
good
in
faith
for
from
concedes
appellant
“Again,
require police offi-
upon that belief. To
may arrest
officer
that
law to
cers to be insurers of the correctness
circumstances
misdemeanor
hamper
in
them
judgment
their
would
prudent
reasonably
lead
would
performance
their duties. Un-
that
faith
good
in
believe
to
officer
circumstances, they
der such
would
violation,
cites
awas
there
most reluctant to make
arrests for
McNamara, 131 Wash.
v.
Coles
case of
they
fear
that
would be held liable
624, 241
430, 136 Wash.
377,
P.
230
having made
reasonable
an honest and
in this
authority
1,
leading
as the
P.
mistake.
recent
more
Another
jurisdiction.
Zimmerman,
expressed
reasoning
“Similar
in
v.
holding is Sennett
case so
Davies, 1952,
Coverstone v.
38 Cal.2d
414.
649,
P.2d
314
0 Wash.2d
5
315, 321,
876, 879,
239 P.2d
where the
in this
appropriate
instruction
supreme court of California stated:
it the
before
jury
because
case
dili
appellant was
whether
question
“ ‘ * * * It is thus manifest
arrests,
ques
making
in
gent
day
day problems
of law enforce-
decided
properly
not be
tion could
require
peace
ment
officers be al-
concerning
not informed
jury was
lowed to act without
being
fear of
held
an offi
under which
the circumstances
liable
they
them,
the facts as
see
risk
an arrest without
cer could make
provided such facts would lead a rea-
appellant
liability. As the
ing civil
person
sonable
to conclude that he was
brief,
instruction
points
in his
out
witnessing the commission
pub-
of a
the law.”
correctly states
lic offense
arrested.’
case
what the
the aforesaid
involves
As
police
“We hold that a
officer is en-
Washington
gross
terms
misde
State
titled to make an arrest without a war-
meanor,
may
strictly
point.
not be
in
rant, when he has reasonable cause to
did, however,
authority
cite as
The court
believe that a crime is being Zimmerman,
the case
Sennett v.
50
presence.
his
in
It was reversible error
414,
Wash.2d
P.2d
which involved
to have refused to submit the defense
“misdemeanor” in
a mere
which the same
probable
cause to
jury,
and to
applied.
rule was
have instructed
jury
as indicated
above.”
court,
Washington
Sennett v.
Another case which supports the
citing
view
Zimmerman, supra, after
case
that a law enforcement
may,
States, supra,
said:
United
v.
of Garske
warrant,
arrest a
for a
of-
should not be re-
officers
“Police
fense when he has
grounds
guarantee the correctness of
quired
believe
the offense has been committed
is,
that an determination
their
presence,
is the following: Cave v.
committed,
fact, being
in order to
Cooley,
48 N.M.
“So, holding through is seen of the properly senses or inferences express upon not based lan- testimony court to be drawn from the of the upon statute but a rule guage of the senses. that the act of reason amply case, sup- would the record this part belief on his bona fide police officer finding who ar- port being committed. So it is had reasonable Colling Mr. rested adopting of other courts with decisions believe, had, Colling Mr. Cooley, Cave v. view.” N.M. officer, a mo- at 888. 152 P.2d highway tor while under Dakota North my sincere conviction that It is the ma- State liquor. This be- opinion ignores implica- the obvious influence jority personal on judgment based important implied sections of the lief
tions through time knowledge acquired at the support the consent law which rule that an warrant As the arrest without senses. provi- as all other legal and
was therefore com- law were implied consent
sions of with, Highway Commission-
plied the State revoking authority in
er acted within his petitioner’s license. driver’s herein, applying
For the stated reasons our implied
both to our consent law arrest,
general law I would reverse and affirm
order of the district court Highway
order of the Commissioner. State *15 rel. Herman H.
STATE of North Dakota ex Petitioner, JOOS, GUY, L. State of
William as Governor Dakota, Respondent. North
No. 8113.
Supreme North Court of Dakota.
Dec. 1963.