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 Stutsman County, Southeast Judicial District, the Honorable John E. Greenwood, Judge.
Nathan D. Severson (argued) and Luke T. Heck (on brief), Fargo, ND, for appellee and cross-appellant.
Michael T. Pitcher, Assistant Attorney General, Office of Attorney General, Bismarck, ND, for appellant and cross-appellee.
Opinion of the Court by VandeWalle, Chief Justice. Dale V. Sandstrom, Daniel J. Crothers, Lisa Fair McEvers, Carol Ronning Kapsner.
VandeWalle, Chief Justice.
[¶1] The Department of Transportation appealed, and Casey Washburn cross-appealed, from a district court order reversing the Department of Transportation's revocation of Washburn's driver's license. We affirm.
[¶2] During a patrol, a Jamestown police officer encountered a vehicle parked along a residential street with its door ajar. Upon approaching the vehicle, the officer discovered Washburn asleep in the driver's seat. After waking Washburn, the officer detected an alcoholic odor that became stronger as the officer conversed with Washburn. The officer asked Washburn to perform field sobriety testing, which he refused. The officer arrested Washburn on suspicion of being in actual physical control of a vehicle while intoxicated.
[¶3] The officer transported Washburn to the law enforcement center, at which the officer apprised Washburn of the implied consent advisory multiple times. After each reading, Washburn told the officer he did not understand the advisory and would not understand the advisory no matter how many times the officer read it to him. The officer informed Washburn he considered Washburn to have refused chemical testing. Washburn responded saying he was not refusing, although he never stated he would submit to testing. There is no evidence in the record indicating whether Washburn took a chemical test.
[¶4] Based upon this refusal, the Department of Transportation (" Department" ) sought to revoke Washburn's driver's license. Washburn requested an administrative hearing. The arresting officer testified that, in the police report, he noted Washburn requested to speak with an attorney. The arresting officer, however, offered conflicting accounts of Washburn's purported request for an attorney at the administrative hearing. In response to an initial question of whether Washburn requested to call an attorney, the arresting officer testified Washburn only informed center staff he requested to make a phone call, which the officer assumed to be to an attorney. The officer testified he sought clarification and asked Washburn if he wanted to call an attorney. Washburn responded he wanted to call his father. Because he was unsure whether Washburn wanted to call an attorney, his father, or both, the arresting officer testified he began making arrangements so Washburn could call whomever he pleased. In response to a later question, the arresting officer answered in the affirmative when asked if, in addition to calling his father, Washburn also indicated he wanted to talk to an attorney. The officer testified law enforcement center staff informed Washburn he would not be able to make any calls until they completed the booking process. There is no evidence in the record showing whether Washburn made any phone calls.
[¶5] After receiving this and other testimony, the hearing officer concluded probable cause existed to believe Washburn was in actual physical control of the vehicle while intoxicated. In considering whether Washburn received an adequate opportunity to consult with counsel after his purported request to do so, the hearing officer found:
Washburn told [the arresting officer] and the jailer that he wanted to speak to an attorney. [The arresting officer] inquired further about Washburn's request to speak to an attorney and Washburn then indicated that he actually wanted to call his father. . . . When Washburn asked to speak to an attorney, it was after he refused by his actions to take the test. There was no evidence that Washburn wanted to speak to an attorney for the purposes of ...