*1 Lamb, opinion, Gen., with this we re- Atty. accordance Steven Francis Asst. Bismarck, judgments Dept, re- North Dakota of Transp., verse the dismissal and for questions mand determination
raised. Firm, Vinje appellee; Law
argued by A. Ralph Vinje. ERICKSTAD, C.J., and VANDE GIERKE, Justice. WALLE, JJ., MESCHKE, GIERKE and This is an the North Dakota concur. (Commission- er) from district court revers- suspension Commissioner’s Julie Fasching’s (Fasching) driving privileges for days as a of a driving under the charge. influence of alcohol We reverse. Fasching stopped by Sheriff Duane (Sheriff Snider) Snider of the Morton Coun- FASCHING, Appellee, Julie ty Sheriff’s 1989, because of his observation that she driving erratically. approaching After BACKES, Richard her, speaking vehicle and Commissioner, Appellant. Snider requested step Sheriff out of her car. speaking After Civ. No. 890347. observing car, she while out Snider Fasching Sheriff concluded that Court of Dakota. drinking consequently alcohol and re- 1, 1990. quested get patrol into his car in
order to field sobriety conduct tests. At time, Fasching’s passenger, that Debra (Hotter), Hotter informed Sheriff Snider she was an that patrol wanted sit car ing. Sheriff Snider Holter’s allow request. After had begun Sheriff Snider sobriety Fasching, to conduct field tests on approached patrol Hotter car to find going on and what to advise Fasch- again, Once Hotter told back into car and wait. tests, Following sobriety the field Fasching driving intoxicating liquor. the influence of being taken to the Mandan Law Enforce- Center, ment Sheriff Snider conducted an intoxilyzer test on her. The test indicated Fasching operating had been her auto- mobile with a blood-alcohol content ex- percent of ten cess one-hundredths of one weight violation Section 39-08- 01(l)(a), N.D.C.C.
temporary
license
driver’s
notified
suspend
of the Commissioner’s intention to
her driver’s license.
submitted a
*2
intoxilyzer
ministered
test when the ac-
hear-
administrative
timely request for an
attorney
right to an
had been vio-
cused’s
Com’r,
v. State
lated
Holte
hearing,
administrative
At the
(N.D.1989).
her constitu-
argued that she
on the
attorney
Holte,
both
tional
Arden Holte was arrested for
Fasch-
at the
station.
highway
intoxicating
driving under the influence
hearing
the administrative
39-08-01,
testified at
liquor in violation of Section
that,
requested to
with
after she
the administration of the
C.C. Prior to
Holter,
told her that she
him,
intoxilyzer test on
Holte
to
until after
with Holter
could not consult
attorney. Police
allowed to Contact his
Holter,
completed.
intoxilyzer
the
request stating that he
officials denied his
deposition, stated
testified via
who
anybody you
“call
want once we
could
to
repeatedly not allowed
subsequently
done.” Holte was
convicted
Center
Fasching at the Law Enforcement
intoxilyzer test.
as he failed the
intoxilyzer test
until after the
hearing,
administrative
the
At the civil
ac-
denied
completed in addition
intoxilyzer
test were received
results
highway.
the
Fasching out on
cess to
driving privileges
and Holte’s
into evidence
that,
However,
testified
de-
Court,
suspended.
appeal
to this
were
Fasching that
fact that he told
spite the
argued
intoxilyzer
that the
test re-
Holte
had a
to consult
into evi-
improperly
were
admitted
sults
test,
intoxilyzer
taking the
before
he
denied
dence due to the fact that
consulting
the test without
agreed to take
attorney prior to the adminis-
access to his
Further, Sheriff Snider testified
Holter.
Holte,
intoxilyzer.
supra,
tration of the
Fasching’s request to talk to Holter
Recently, this Court
Therefore, con-
improperly administered.
evidentiary admissibility of a
practice in the
any
provides:
at law entitled
1. Section
state,
request,
at his
record of this
courts of
cases must be taken before
“The accused in all
may
his arrest.”
unnecessary delay,
such
after
magistrate
visit
deciding
find with an
whether
reasoning in
sistent with
Fasching’s intoxilyzer
Intoxilyzer test.
Bick
to take the
See also
results of
that the
into evidence
properly
admitted
v. North Dakota State
test were
ler
ac-
(N.D.1988). They
at the civil administrative
court’s
the district
cordingly,
denigrate
we reverse
tra
entirely
also
North Dakota’s
*3
right
reverence for the
to counsel.
ditional
(N.D.
Orr,
v.
375
171
State
See
Holte, supra,
decision in
light
In
of our
1985).
prema
Holte was ill-advised and
to consider whether
we decline
Instead,
apply
ture.
we should
the exclu
be-
in
sionary rule
this case and
the lead
follow
fairly
administered
the results of
cause
held
of the Alaska
Court which
into
properly admitted
intoxilyzer test were
that the result of a test secured in violation
the civil administrative
evidence at
excluded
to counsel should be
not she was
whether or
proceeding.
in a civil license-revocation
in
relevant
attorney.
While
v.
Public
dispo- Whisenhunt
our aforementioned
this case due to
of
(Alaska 1987).
Safety,
in-
ney’s right
to consult with
supports
exclusion of
Our statute
previous interpre-
to our
person, we adhere
resulting
test results
from a violation
tation of that section.
39-20-07(5),
right to counsel.
Section
reasons,
foregoing
reverse
For the
NDCC, makes the test results admissible
accordingly
court
district
sample
“it
only when
is shown that
affirm the commissioner’s decision.
test
properly obtained and the
administered_”
Here, Fasching re-
C.J.,
ERICKSTAD,
and VANDE
peatedly
WALLE, J., concur.
test
administered. The
before the
LEVINE, Justice, dissenting.
sheriff, however,
upon
took it
himself to
why
speak to her
adduce
she wanted to
Holte v.
Commission-
then,
quite remarkably my
in
er,
(N.D.1989), majori-
ed to the
given opportunity to consult. reasonable Arizona, 477, 101 v. 451 U.S. Edwards Cf. (1981) suspect
S.Ct.
who has subjected is not to be to further
counsel interrogation has until counsel Roberson, available;
made
Arizona
108 S.Ct.
U.S.
(1988) rule [applying Edwards v. Arizona police interrogation of accused about *4 subject ini
offense unrelated to the interrogation during ac
tial which
cused has counsel].
counsel, Fasching held to her should the test.
uncounselled decision to take
I with the Minnesota rationale for exclusion of test re-
Court’s accomplish objective of fair
sults to
treatment: “When the driver has been coerced into Scranton, (argued), Silver Ziebarth making complicated decision without defendant and Pro se. required by
the assistance of counsel opinion, he should not be bound (argued), Binek William W. decision, might since he have otherwise plaintiff appellee. Pro se. differently.” made it Prideaux v. State ERICKSTAD, Chief Justice. 395. Judge affirm deci- Schneider’s appeals Silver Ziebarth from order sion the administrative license by the District for Bowman Court suspension. 7, 1989, County July denying motion his stayed. judgment. to vacate MESCHKE, J., concurs. an action William Binek commenced $22,- against Ziebarth to recover Silver legal allegedly 879.53 due in services. On 2, 1987, September the District Court for County entered an order for de- Bowman fault in favor of Binek and BINEK, Binek Law William W. against The district court issued d/b/a Ziebarth. Office, Appellee, Plaintiff hearing pursuant to Zie- an order for a N.D.R.Civ.P., 60(b), Rule motion for barth’s the default relief from ZIEBARTH, Defendant Silver partially granting that motion and after Appellant. continuances, a trial scheduled for two. No. Civ. 890317. 13, 1988, Zie- March 1988. On Supreme Court of North Dakota. voluntary Chapter 11 bank- filed a barth 1990. ruptcy petition which was dismissed Bankruptcy for the United States Court April Dakota on 1989. District of North 7, 1989, July the District Court