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Herrman v. Director, North Dakota Department of Transportation

Supreme Court of North Dakota

June 24, 2014

Joseph P. Herrman, Appellant
v.
Director, North Dakota Department of Transportation, Appellee

As Amended July 18, 2014.

Page 769

[Copyrighted Material Omitted]

Page 770

Editorial Note:

The opinion cannot be considered final until disposition of such petition for rehearing by the court or expiration of 14 days from filing date

Appeal from the District Court of Stark County, Southwest Judicial District, the Honorable William A. Herauf, Judge.

AFFIRMED.

Thomas F. Murtha IV, Dickinson, ND, for appellant.

Douglas Bruce Anderson, Assistant Attorney General, Office of Attorney General, Bismarck, ND, for appellee.

Daniel J. Crothers, Lisa Fair McEvers, Carol Ronning Kapsner, Dale V. Sandstrom, Gerald W. VandeWalle, C.J.

OPINION

Page 771

Crothers, Justice.

[¶1] Joseph P. Herrman appeals a district court judgment affirming a North Dakota Department of Transportation (" Department" ) decision revoking his driving privileges for one year. We affirm, concluding sufficient probable cause existed to arrest Herrman without considering his onsite screening test and Herrman had reasonable opportunity to consult with an attorney. We decline to address Herrman's argument implied consent laws represent an unconstitutional condition.

I

[¶2] At 8:00 p.m. on May 30, 2013, police received a report of a vehicle having difficulty maintaining its lane on Interstate 94. Stark County Sheriffs Department Deputy Shane Holtz was in the area and waited for the vehicle to approach. As the vehicle passed him, Deputy Holtz confirmed the license matched the reported vehicle. Deputy Holtz observed the vehicle cross the lines dividing the lanes and miss the driving lane while exiting the Interstate. Deputy Holtz initiated a traffic stop at 8:13 p.m.

[¶3] Deputy Holtz smelled alcohol and observed Herman's eyes were watery and bloodshot. Herrman admitted to drinking. Herrman had difficulty balancing while exiting his vehicle to perform field sobriety tests. Herrman failed the horizontal gaze nystagmus test, walk-and-turn test and one-legged-stand test. Deputy Holtz read Herrman the implied consent advisory. At 8:20 p.m., Herrman agreed to take an onsite screening test, showing his blood-alcohol content was 196. Herrman was arrested ...


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