from the District Court of Walsh County, Northeast Judicial
District, the Honorable M. Richard Geiger, Judge.
A. Braun, Fargo, ND, for appellant.
T. Pitcher, Assistant Attorney General, Office of the
Attorney General, Bismarck, ND, for appellee.
Fair McEvers, Daniel J. Crothers, Carol Ronning Kapsner,
Gerald W. VandeWalle, C.J. Opinion of the Court by McEvers,
Justice. I concur in the result. Dale V. Sandstrom.
Fair McEvers, Justice.
[¶1] Craig Cudmore appeals from the district
court's judgment affirming the North Dakota Department of
Transportation's (" DOT" ) revocation of his
driving privileges. Cudmore argues the hearing officer erred
in finding that he did not invoke his right to consult with
counsel before submitting to a chemical test. We affirm.
[¶2] In March 2015, Cudmore was arrested for
driving under the influence of alcohol (" DUI" )
after his responses to the deputy's requests to submit to
a chemical blood test were deemed a refusal. Cudmore timely
requested an administrative hearing. According to testimony
at the administrative hearing, Walsh County Deputy Sheriff
Matthew Wark stopped Cudmore for a traffic violation. The
deputy smelled a strong odor of alcohol coming from the
vehicle. The deputy ordered Cudmore out of the vehicle and
requested Cudmore to submit to field sobriety testing.
Cudmore failed the horizontal gaze nystagmus test, failed a
partial alphabet test, and failed a reverse count test. The
deputy read the implied consent advisory to Cudmore and asked
him to submit to a preliminary chemical breath test. Cudmore
consented to a preliminary breath test, which produced a
Cudmore was over the legal limit. The deputy arrested
Cudmore, handcuffed him, and placed him in the back of the
[¶3] According to the deputy's
testimony, a few minutes passed as the deputy spoke to the
passengers in Cudmore's vehicle before re-engaging
Cudmore in conversation. Cudmore inquired about the amount of
bond and informed the deputy he was arrested for DUI
approximately eight years prior. Cudmore also informed the
deputy he owned a trucking company and " it was a
serious problem for him and me at this time." The deputy
Mr. Cudmore started getting agitated and said . . . he was
going to fucking lawyer up. . . . [H]e was starting to get
very agitated in the backseat. I stated to Mr. Cudmore that I
was going to read the DUI implied consent form again to him.
At this time Mr. Cudmore told me to . . . or stated to me,
" Fuck you." . . . I started to read the DUI
implied consent form and during . . . while I was reading the
implied consent form, Mr. Cudmore was screaming in the
backseat, " Fuck you. You're a piece of shit. Fuck
you, motherfucker. You're a piece of shit", the
entire time while I read the DUI implied consent. . . . I
stated to Mr. Cudmore if he was willing to take the blood
test at this time, what I was asking for. . . . Mr. Cudmore
screamed through the back, what the fuck do I need to take a
blood test for? I then tried to explain to Mr. Cudmore that
there are two parts to the DUI implied consent form and Mr.
Cudmore started screaming " Fuck you" and "
Fuck you." . . . At that time Mr. Cudmore threw himself,
leading with his head into my Plexiglas cage with his head.
Which I immediately observed blood coming from his head at
this time. . . . At that point I considered his actions as a
deputy testified he interpreted Cudmore's statement to
mean " he's going to get a lawyer after
[¶4] Cudmore required medical treatment for
his injuries, and was taken to the hospital, where he
continued to scream profanities at the deputy. After
receiving treatment, Cudmore was taken to the jail where the
deputy attempted to explain the citations and the Report and
Notice Form to Cudmore. According to the deputy's
testimony, " Mr. Cudmore basically stated, fuck you
I'm not signing anything and didn't want to listen or
[¶5] The administrative hearing officer
found reasonable and articulable suspicion for the traffic
stop and the deputy had reasonable grounds to believe Cudmore
was driving under the influence of alcohol. The hearing
officer further found Cudmore's statement, " I'm
going to fucking lawyer up," was not a request to speak
with an attorney in response to the deputy's request for
Cudmore to submit to a blood test. The hearing officer also
found the deputy reasonably understood Cudmore's
statement to mean he was going to fight the DUI charge and
not a request to immediately consult with an attorney. The
hearing officer concluded Cudmore's reference to "
lawyering up" volunteered before he was asked to submit
to a blood sample was a passing reference to an attorney. The
hearing officer revoked Cudmore's driving privileges for
180 days. Cudmore timely appealed the administrative hearing