from the District Court of Stark County, Southwest Judicial
District, the Honorable James D. Gion, Judge.
F. Murtha IV, for appellant.
Michael T. Pitcher, Office of the Attorney General, for
1] Jesse Koehly appeals the district court judgment affirming
a North Dakota Department of Transportation hearing
officer's order suspending his driving privileges for 180
days. Koehly argues the implied consent law as to breath
tests violates the state and federal constitutions, he cured
his refusal, and the police officers violated his limited
right to counsel. We affirm.
2] In July 2015, a Dickinson police officer arrested Koehly
for driving while intoxicated. At the police station, the
officer placed him in a recorded holding room with his cell
phone, and he was given an opportunity to contact an
attorney. He concedes he made no attempt to contact an
attorney. Instead, he called family and friends and spoke
with them for approximately forty minutes.
3] During Koehly's phone calls, the officer visited with
him and asked whether he would consent to a breath test. For
about thirty minutes, he did not answer the officer's
requests. He then said he wanted to refuse. Koehly
subsequently asked whether he could take a blood test instead
of a breath test, and the officer said no. More time passed
before Koehly agreed to a breath test. In agreeing, however,
he demanded the officer stipulate in writing her refusal to
allow him to take a blood test. The officer construed
Koehly's conduct as a refusal to take the breath test.
4] In August 2015, the Department of Transportation held a
hearing on whether Koehly's license should be suspended
for his refusing a chemical test. The hearing officer found
Koehly refused the breath test. Koehly unsuccessfully
petitioned the agency for reconsideration. He appealed the
agency's findings to the district court.
5] In April 2016, the district court affirmed the
Department's findings regarding Koehly's attempted
cured refusal. The court also concluded the officer did not
violate Koehly's right to counsel and the implied-consent
law relating to breath tests was not unconstitutional. Koehly
appeals the district court's judgment affirming the
6] The Department had jurisdiction under N.D.C.C. §
39-20-05. Koehly's appeal to the district court was
timely under N.D.C.C. § 28-32-42(1). The district court
had jurisdiction under N.D. Const. art. VI, § 8, and
N.D.C.C. § 39-20-06. Koehly's appeal to this Court
was timely under N.D.C.C. § 28-32-49. This Court has
jurisdiction under N.D. Const. art. VI, §§ 2 and 6,
and N.D.C.C. § 28-32-49.
7] Under North Dakota's implied-consent law, N.D.C.C. ch.
39-20, the Department of Transportation may revoke the
driving privileges of a person who refuses a breath test
during a lawful arrest. The parties agree Koehly initially
refused a breath test. Koehly, however, argues he cured his
earlier refusal by consenting to a breath test. The first
issue, which we review de novo, is whether North Dakota's
implied-consent laws violate various federal and state
constitutional provisions. McCoy v. N.D. Dep't of
Transp., 2014 ND 119, ¶ 8, 848 N.W.2d 659. The
second issue is whether police officers violated Koehly's
limited right to counsel by placing him in a recorded and
monitored room. The third issue is whether Koehly cured his