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Cudmore v. Director of North Dakota Department of Transportation

Supreme Court of North Dakota

March 15, 2016

Craig Thomas Cudmore, Appellant
v.
Director of the North Dakota Department of Transportation, Appellee

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

         Jennifer A. Braun, Fargo, ND, for appellant.

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

         Lisa 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.

          OPINION

Page 53

          Lisa 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.

         I

          [¶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 result indicating

Page 54

Cudmore was over the legal limit. The deputy arrested Cudmore, handcuffed him, and placed him in the back of the patrol vehicle.

          [¶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 further testified:

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 refusal.

         The deputy testified he interpreted Cudmore's statement to mean " he's going to get a lawyer after everything."

          [¶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 anything."

          [¶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 officer's ...


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