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Charles Michael Morrow v. Francis G. Ziegler

February 26, 2013

CHARLES MICHAEL MORROW, PLAINTIFF AND APPELLANT
v.
FRANCIS G. ZIEGLER, DIRECTOR OF THE NORTH DAKOTA DEPARTMENT OF TRANSPORTATION,
DEFENDANT AND APPELLEE



Appeal from the District Court of Dunn County, Southwest Judicial District, the Honorable H. Patrick Weir, Judge.

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

N.D. Supreme CourtMorrow v. Ziegler,

2013 ND 28

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

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Concurrence filed.

REVERSED.

Opinion of the Court by VandeWalle, Chief Justice.

[¶1] Charles Morrow appealed from a district court judgment affirming a North Dakota Department of Transportation hearing officer's decision suspending his driving privileges for one year. We reverse.

I.

[¶2] In February 2012, Highway Patrol Officer Shawn Skogen observed a car traveling at 81 miles-per-hour in a 65 mile-per-hour zone. Skogen stopped the car, and noticed that the driver, Charles Morrow, had glossy, bloodshot eyes. The officer also smelled "the odor of alcohol" emanating from the vehicle. Skogen asked Morrow to accompany him to his patrol car to discuss the traffic violation. While in the patrol car, Skogen again smelled alcohol emanating from Morrow. Morrow admitted to consuming a beer with dinner.

[¶3] Morrow submitted to a series of field sobriety tests, including the horizontal gaze nystagmus test, the backwards counting test, the partial alphabet recitation test, and the finger dexterity test. He failed two tests and passed two tests. Skogen read Morrow the implied consent advisory, and requested Morrow submit to the SD-5 onsite screening test. Morrow refused the screening test. At that point, Skogen did not believe Morrow was sufficiently intoxicated to be driving under the influence, nor did Skogen believe he had probable cause to arrest Morrow.

[¶4] Skogen completed the Report and Notice form, issued a copy to Morrow, and released Morrow. On the Report and Notice form is a check box where the officer can indicate whether the driver refused the onsite screening test, a place to indicate the reason the driver was stopped or lawfully detained, whether it be erratic driving, a crash, a traffic violation, or the car was already stopped, and a place to indicate the probable cause to arrest. Skogen checked the box indicating Morrow refused the onsite screening test, indicated the traffic violation as the reason for the stop, and wrote "N/A" in the probable cause to arrest section.

[¶5] Morrow requested an administrative hearing on the suspension of his driving privileges. At the hearing, Morrow argued that N.D.C.C. § 39-20-04 required the officer to include his observation that Morrow's body contained alcohol on the report and notice. The hearing officer ruled: "[b]y checking the box 'Refused onsite screening test' and certifying that 'this report is true and correct,' the officer represented to the Director that the elements required in NDCC 39-20-14 (moving traffic violation/traffic accident as a driver and body contains alcohol) had been ...


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