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Pokrzywinski v. Director, North Dakota Department of Transportation

Supreme Court of North Dakota

June 24, 2014

Derek Pokrzywinski, Appellant
v.
Director, North Dakota Department of Transportation, Appellee

Page 777

[Copyrighted Material Omitted]

Page 778

Appeal from the District Court of Walsh County, Northeast Judicial District, the Honorable M. Richard Geiger, Judge.

AFFIRMED.

Robert J. Woods, Forest River, ND; for appellant.

Michael T. Pitcher, Assistant Attorney General, Office of Attorney General, Bismarck, ND; for appellee.

Lisa Fair McEvers, Daniel J. Crothers, Dale V. Sandstrom, Carol Ronning Kapsner, Gerald W. VandeWalle, C.J. Opinion of the Court by McEvers, Justice.

OPINION

Page 779

McEvers, Justice.

[¶1] Derek Pokrzywinski appeals the district court judgment affirming a North Dakota Department of Transportation hearing officer's decision suspending his driving privileges for three years. We affirm.

I

[¶2] On June 15, 2013, Highway Patrol Officer Anthony DeJean arrested Pokrzywinski for driving under the influence (" DUI" ) and, subsequently, issued a Report and Notice form, to suspend Pokrzywinski's driving privileges. Pokrzywinski requested and received an administrative hearing, which occurred on July 9, 2013.

[¶3] On June 15, 2013, at approximately 8:30 p.m., Pokrzywinski was in a single vehicle motorcycle crash. On Deputy Richard Sherlock's arrival, he observed Pokrzywinski on a backboard being loaded on an ambulance stretcher. While in the ambulance, Deputy Sherlock asked Pokrzywinski what happened, and Pokrzywinski responded that " he had a couple beers, hit a pothole and lost control of his motorcycle." While talking to Pokrzywinski, Deputy Sherlock observed a strong odor of alcohol coming from Pokrzywinski's mouth and Pokrzywinski had bloodshot, watery eyes. Based on his training, Deputy Sherlock concluded Pokrzywinski was impaired. Deputy Sherlock observed Pokrzywinski's hand was wrapped in gauze and his head was bleeding. Deputy Sherlock's medical training led him to believe Pokrzywinski's head injury was not affecting his ability to communicate. Deputy Sherlock observed the road had potholes.

[¶4] Highway Patrol Officer Matthew Peschong testified that he spoke with an eye witness. The eye witness reported the crash after observing it. The eye witness also claimed he had attempted to stop Pokrzywinski from driving because he believed Pokrzywinki was intoxicated and had been told by Pokrzywinski that he had been traveling at 90 m.p.h. prior to the crash. The length of the crash made it obvious to Officer Peschong that Pokrzywinski was traveling at considerable speed. After receiving the information from the eye witness and Deputy Sherlock, Officer Peschong concluded Pokrzywinski was under the influence of alcohol during the crash and directed Officer DeJean to meet Pokrzywinski at Altru hospital in Grand Forks to arrest him for DUI and request Pokrzywinski submit to a blood test. Officer Peschong did not receive any reports that Pokrzywinski had lost consciousness. Officer Peschong heard on a broadcast, which he assumed was emergency personnel, that Pokrzywinski was alert and awake at the scene of the crash.

[¶5] Before arresting Pokrzywinski, Officer DeJean was informed by Officer Peschong that (1) an odor of alcohol was detected coming from Pokrzywinski at the scene of the crash, (2) the eye witness had observed Pokrzywinski drinking in excess, (3) Pokrzywinski had been traveling at a high rate of speed when he crashed, and (4) the location of the crash. Officer DeJean was waiting at Altru hospital when Pokrzywinski arrived and detected an odor of alcohol as he passed. Ambulance personnel stated Pokrzywinski had been conscious the entire time in the ambulance. At approximately 10:38 p.m., Officer DeJean

Page 780

was allowed to speak to Pokrzywinski. Officer DeJean again detected an odor of alcohol coming from Pokrzywinski, and Pokrzywinski claimed he had consumed two beers. Officer DeJean observed Pokrzywinski had been in a serious motorcycle crash because Pokrzywinski was connected to several machines, had bandaged extremities, and a bandaged head. Officer DeJean arrested Pokrzywinski and asked him to submit to a blood test. Pokrzywinski asked if he had to submit. Officer DeJean explained he could not offer legal advice, and Pokrzywinski refused to submit to the blood test. Officer DeJean did not advise Pokrzywinski of the North Dakota implied consent law because more than two hours had elapsed since the crash. Officer DeJean issued a Report and Notice form to suspended Pokrzywinski's driving privileges and placed it with Pokrzywinski's personal belongings in his hospital room. In the probable cause section of the Report and Notice form, Officer DeJean checked boxes indicating " crash" and " odor of alcoholic beverage" and noted that Pokrzywinski " admitted consuming 2 beers." After leaving Pokrzywinski's room, Officer DeJean was directed by his superior to advise Pokrzywinski of the implied consent law because it could still be in effect even though more than two hours had elapsed since the crash. Officer DeJean returned to Pokrzywinski's hospital room to request, for the second time, Pokrzywinski submit to a blood test and advised him of the implied consent law. Pokrzywinski again refused to submit to the blood test. During this second encounter, Officer DeJean observed Pokrzywinski was very sedated and Pokrzywinski's communication was mumbled, but Officer DeJean was able to discern Pokrzywinski said no.

[¶6] Pokrzywinski testified the last thing he remembered on June 15, 2013, was slowing down due to the potholes and gravel. Pokrzywinski then remembered waking up in the hospital the morning of June 16, 2013. Pokrzywinski believed his lack of memory of the crash and subsequent events was due to head trauma. Pokrzywinski testified that he consumed two beers prior to the crash, he did not remember how fast he was driving but usually goes about 45 to 55 m.p.h. on that road, and the crash was caused by poor road conditions. Pokrzywinski's injuries included " head was scalped back five inches," lost pinkie finger on his right hand, severe skin loss on ring finger on his right hand, broken collar bone, and road rash on other parts of his body. Pokrzywinski explained he does not know if he suffered a concussion, but indicated the doctor who treated his hand noted loss of consciousness, and the ambulance personnel told him they had to keep waking him because he was losing consciousness. Pokrzywinski required surgery, a plate on his collar bone, a skin graft on his right hand, and approximately 30 staples on his head. Pokrzywinski testified he would have consented to the blood test if he had his normal cognitive abilities and known his license would be revoked for three years. Pokrzywinski and his mother testified she had to consent to medical treatment on his behalf. Pokrzywinski's mother testified Pokrzywinski could not physically make a mark on the medical forms and was refusing ...


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