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Koehly v. Levi

Supreme Court of North Dakota

November 9, 2016

Jesse Scott Koehly, Appellant
v.
Grant Levi, Director of the North Dakota Department of Transportation, Appellee

         Appeal from the District Court of Stark County, Southwest Judicial District, the Honorable James D. Gion, Judge.

         AFFIRMED.

          Thomas F. Murtha IV, for appellant.

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

          OPINION

          Sandstrom, Justice.

         [¶ 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.

         I

         [¶ 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 Department's order.

         [¶ 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.

         II

         [¶ 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 ...


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