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Lee M. Vanlishout v. North Dakota Department of Transportation

July 13, 2011

LEE M. VANLISHOUT,
PLAINTIFF AND APPELLANT
v.
NORTH DAKOTA DEPARTMENT OF TRANSPORTATION,
DEFENDANT AND APPELLEE



Appeal from the District Court of Burleigh County, South Central Judicial District, the Honorable Donald L. Jorgensen, Judge.

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

N.D. Supreme Court

Vanlishout v. N.D. Department of Transportation,

2011 ND 138

This opinion is subject to petition for rehearing. [Go to Documents]

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AFFIRMED.

Opinion of the Court by Sandstrom, Justice.

[¶1] Lee Vanlishout appeals from the district court judgment affirming the Department of Transportation's suspension of his driver's license for one year. We affirm the district court's judgment, concluding there was sufficient evidence to suspend Vanlishout's license for actual physical control of a motor vehicle while legally intoxicated.

I

[¶2] Vanlishout was arrested for actual physical control of a motor vehicle while legally intoxicated after he was found in the backseat of a car that was stuck in a ditch. Vanlishout requested a hearing regarding the suspension of his driving privileges, during which the following testimony was given.

[¶3] Early one morning in May 2010, a Morton County deputy was notified by dispatch of a car stuck in a ditch outside of Mandan. The deputy testified at the administrative hearing that he reached the car at 4:10 a.m. The car "looked like it had driven straight into the ditch," and it was still running at the time. The deputy noted the road and ditch were very muddy that evening because of significant rainfall, and he speculated that pulling the car out would have required a tow truck.

[¶4] The deputy testified that when he approached the car, he noticed a man in the backseat, who turned out to be Vanlishout. The deputy did not recall who first opened up the backseat door, but Vanlishout got out and walked to the deputy's car with his license, registration, and insurance information. The car that was stuck in the ditch was registered to Vanlishout. According to the deputy, when he asked Vanlishout how much he had had to drink, Vanlishout responded "too much," and said he was "guilty."

[ΒΆ5] The deputy then gave Vanlishout a series of sobriety tests. Vanlishout exhibited six of six possible intoxication clues in the horizontal gaze eye movement test, but passed the tests requiring him to recite numbers and letters backwards. The result of Vanlishout's breath test was a blood alcohol level ...


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