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Schmidt v. Levi

Supreme Court of North Dakota

April 12, 2016

Bo Daniel Schmidt, Petitioner and Appellant
v.
Grant Levi, Director of the North Dakota Department of Transportation, Respondent and Appellee

Page 809

          Appeal from the District Court of Stark County, Southwest Judicial District, the Honorable Zane Anderson, Judge.

         Thomas F. Murtha IV, Dickinson, ND, for petitioner and appellant.

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

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

          OPINION

Page 810

         Daniel J. Crothers, Justice

          [¶1] Bo Daniel Schmidt appeals from a district court judgment affirming a Department of Transportation hearing officer's decision to suspend his driving privileges. Schmidt argues the implied consent advisory was misleading, the chemical test was a warrantless search and North Dakota's refusal statute is unconstitutional. We affirm.

         I

          [¶2] Dickinson Police Sergeant Mike Hanel arrested Schmidt for driving under the influence after observing Schmidt's vehicle traveling in the wrong lane and weaving towards a curb. Hanel stopped Schmidt and smelled alcohol in the vehicle. Schmidt admitted he had been drinking. Hanel read Schmidt the North Dakota implied consent advisory and requested he take an onsite alcohol screening test. Schmidt agreed. The test result showed Schmidt had a blood alcohol concentration of .124 percent and Hanel arrested him for driving under the influence.

          [¶3] At the police station Hanel placed Schmidt in an interview room with a cell phone and phone book. After twenty minutes Hanel advised Schmidt a second time of the implied consent advisory and requested Schmidt take a chemical breath test. Schmidt again agreed. The test result showed Schmidt had an alcohol concentration of .124 percent. The hearing officer found Schmidt had a blood alcohol concentration of at least eight one-hundredths of one percent by weight in violation of N.D.C.C. § 39-08-01. The Department of Transportation hearing officer suspended Schmidt's driving privileges for 91 days and the Stark County district court affirmed.

         II

          [¶4] Schmidt argues the implied consent advisory was misleading because it failed to inform him of his right to refuse the chemical test. On appeal from the district court's decision in an administrative appeal this Court reviews the agency

Page 811

order in the same manner as the district court. N.D.C.C. § 28-32-49. We must affirm an ...


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