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Maisey v. North Dakota Department of Transportation

November 17, 2009

JACOB DANIEL MAISEY, PETITIONER AND APPELLANT
v.
NORTH DAKOTA DEPARTMENT OF TRANSPORTATION, RESPONDENT AND APPELLEE



Appeal from the District Court of Burleigh County, South Central Judicial District, the Honorable Robert O. Wefald, Judge.

The opinion of the court was delivered by: VandeWalle, Chief Justice.

AFFIRMED.

[¶1] Jacob Daniel Maisey appealed from the district court's judgment affirming the decision to revoke his driver's license for one year. Maisey argues the Report and Notice form did not show the deputy had reasonable grounds to arrest him for driving under the influence of alcohol, he did not refuse to submit to a blood test, and he cured any alleged refusal. We affirm because the Report and Notice form showed the deputy had probable cause to arrest Maisey for driving under the influence of alcohol, the deputy reasonably interpreted Maisey's words and actions to constitute a refusal to submit to a blood test, and Maisey did not cure his refusal.

I.

[¶2] In the early morning hours of March 3, 2009, a Three Affiliated Tribes officer saw a pickup drive through a stop sign at a high rate of speed. The tribal officer pulled the pickup over and spoke with the driver, Maisey. The tribal officer concluded that Maisey was not a member of the tribe, so he asked the dispatcher to contact the county sheriff's department.

[¶3] A deputy testified that he arrived ten to fifteen minutes later. Maisey told the deputy he had been drinking. The deputy observed the odor of an alcoholic beverage coming from the vehicle. Maisey failed the field sobriety tests. The deputy then arrested Maisey for driving under the influence of alcohol.

[¶4] The deputy asked if Maisey was willing to submit to a blood test and Maisey agreed, but the deputy testified Maisey wanted to speak with a specific lawyer first. Once at the hospital, the deputy gave Maisey the implied consent advisory. Maisey then called his wife to get the lawyer's telephone number. Apparently, Maisey's wife was unable to give Maisey the telephone number. After the call, the chief of police, 1who was also present, looked up the lawyer's home telephone number and gave it to Maisey. Maisey did not ask for and was not offered a telephone book. Maisey called the lawyer and left a message on the lawyer's answering machine. The deputy then asked Maisey if he would submit to the blood test, but Maisey said he would like to speak with his lawyer first. The deputy told Maisey he had been given an opportunity to contact his lawyer, and the two engaged in a conversation for ten minutes. Maisey continued to state he was willing to submit to the blood test, but wanted to speak with a lawyer first. The deputy told Maisey that if he wanted to submit to the blood test he should stand up and walk into the exam room. Maisey did not go into the exam room. The deputy determined Maisey had refused to submit to the blood test because he did not get up and walk into the exam room.

[¶5] As the deputy was taking Maisey out of the hospital, Maisey stated that he wanted to take the blood test, but still wanted to speak to his lawyer first. Maisey grabbed the doorframe and told the deputy again that he was not refusing to take the blood test. The deputy told Maisey it was too late. Maisey began to struggle with the deputy. Maisey, the deputy, and two other officers struggled from the hospital to the deputy's vehicle. The deputy testified, "[H]e tried to pull away from us and either escape . . . I don't know where his intentions were of going." During the struggle, Maisey stated that he was not refusing to submit to the blood test. The deputy testified he did not take Maisey back into the hospital to conduct the blood draw "because of the fact that he struggled with us and tried to fight and escape from us." After they arrived at the sheriff's department, Maisey made further comments that he had not refused the blood draw.

[¶6] At the beginning of the administrative hearing, Maisey moved to dismiss the proceeding to revoke his license, arguing the Report and Notice did not sufficiently state the deputy's basis for probable cause to believe Maisey was driving under the influence of alcohol, thus, the Department did not have jurisdiction to suspend Maisey's license. At the bottom of the Report and Notice Form, in the "Reasonable suspicion to stop or reason lawfully detained" section, the deputy had checked the box indicating "already stopped," and had written, "Stopped by TAT officer Mark Nolan." In the "Probable cause to arrest/lawfully detain" section at the bottom of the form, the deputy had checked the boxes indicating "odor of alcoholic beverage," "poor balance," and "failed field sobriety test(s)," without providing a more detailed written explanation.

[¶7] The hearing officer concluded the deputy had reasonable grounds to believe Maisey had been driving or was in actual control of a vehicle while under the influence of alcohol; the deputy's statement of probable cause on the Report and Notice form was sufficient for the Department to have authority to revoke Maisey's driving privileges; Maisey refused to submit to the blood test after being afforded a reasonable opportunity to consult with a lawyer; and Maisey did not sufficiently cure his refusal because he continued to request that he speak with his lawyer before taking the test and he did not offer to take the test while resisting the officers. The hearing officer revoked Maisey's driver's license for one year.

[¶8] Maisey appealed the hearing officer's decision to the district court. The district court held that the Report and Notice, with the boxes checked indicating odor of alcoholic beverage, poor balance, and failed field sobriety tests, showed probable cause to believe that Maisey was driving under the influence of alcohol. The district court concluded that Maisey had been afforded a reasonable opportunity to consult with a lawyer because he was allowed to call his wife, obtain the lawyer's telephone number, and call the lawyer. The district court also concluded that Maisey had refused to take the blood test because his condition that he speak with his lawyer before submitting to the blood test, could not be met. Finally, the district court held that Maisey did not cure his refusal because he continued to condition his consent on speaking with his lawyer, and he struggled with the officers.

II.

[¶9] This Court's review of the administrative suspension or revocation of a driver's license is governed by the Administrative Agencies Practice Act, N.D.C.C. ch. 28-32. Whitecalfe v. N.D. Dep't of Transp., 2007 ND 32, ¶ 7, 727 N.W.2d 779 (citing Aamodt v. N.D. Dep't of Transp., 2004 ND 134, ¶ 12, 682 N.W.2d 308). This Court reviews the record created by the administrative agency, and must affirm the agency's decision unless:

1. The order is not in accordance with the law.

2. The order is in violation of the constitutional rights of the appellant.

3. The provisions of [N.D.C.C. ch. 28-32] have not been complied with in the ...


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