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Mesch v. Levi

Supreme Court of North Dakota

April 22, 2015

David Michael Mesch, Petitioner and Appellant
v.
Grant Levi, Director of the North Dakota Department of Transportation, Respondent and Appellee

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 Dann Edward Greenwood, Judge.

AFFIRMED.

Thomas F. Murtha IV, Dickinson, N.D., for petitioner and appellant; on brief.

Douglas B. Anderson, Office of Attorney General, Bismarck, N.D., for respondent and appellee; on brief.

OPINION

PER CURIAM

[¶1] David Mesch appealed from a district court judgment affirming a Department of Transportation hearing officer's decision suspending his driving privileges for 180 days. Mesch argues the warrantless search of his breath was unlawful because his consent to the searches was coerced, and the implied consent statute is unconstitutional because it violates the unconstitutional conditions doctrine. We have previously held that consent to a chemical breath test is not involuntary or coerced solely because an individual is advised of the implied consent law, which criminalizes refusal. State v. Smith, 2014 ND 152, 849 N.W.2d 599, and McCoy v. North Dakota Dep't of Transp., 2014 ND 119, 848 N.W.2d 659. We have also previously rejected Mesch's argument that the implied consent law is unconstitutional because it violates the unconstitutional conditions doctrine. Beylund v. Levi, 2015 ND 18, ¶ ¶ 16-30, 859 N.W.2d 403. We summarily affirm under N.D.R.App.P. 35.1(a)(7).

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


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