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Martinson v. Levi

Supreme Court of North Dakota

November 16, 2017

Phillip Galen Martinson, Appellant
v.
Grant Levi, Director, North Dakota Department of Transportation, Appellee

         Appeal from the District Court of Ward County, North Central Judicial District, the Honorable Stacy J. Louser, Judge. AFFIRMED.

          Luke T. Heck, Fargo, ND, for appellant.

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

          OPINION

          VandeWalle, Chief Justice.

         [¶ 1] Phillip Galen Martinson appealed from a district court judgment affirming an agency decision to suspend his driver's license for 180 days for being in actual physical control of a motor vehicle while under the influence of intoxicating liquor, a class C felony. Because Martinson was not unlawfully seized and his driveway was within the scope of the statute, we affirm.

         I

         [¶ 2] On May 27, 2016, Martinson was arrested by Sergeant Ruelle of the Minot Police Department for being in actual physical control of a motor vehicle while under the influence of intoxicating liquor. Sergeant Ruelle responded to an anonymous report of erratic driving; the caller provided the license plate number and identifying vehicle information. Sergeant Ruelle obtained the address of the registered owner of the vehicle and arrived there shortly after the tip was received.

         [¶ 3] Upon arriving at the address, Sergeant Ruelle observed an individual in the vehicle matching the license plate from the anonymous tip. A backup officer, Officer Wheeler, arrived at the residence at the same time. Sergeant Ruelle and Officer Wheeler approached the individual, later identified as Martinson, as he exited the vehicle and began walking towards the residence. Sergeant Ruelle called to Martinson to get his attention. Martinson responded along the lines of "what's going on... what's up." Sergeant Ruelle informed Martinson he was responding to a report of a possible intoxicated driver matching the license plate of the car in Martinson's driveway. Martinson said he had not been driving for several hours and had gone out to his vehicle to retrieve his wallet.

         [¶ 4] Sergeant Ruelle observed an open can of Bud Light beer in the vehicle which Martinson claimed was empty. Sergeant Ruelle also observed Martinson having trouble standing and his speech was slurred. Martinson claimed to have only had two beers in the last three hours and consented to a horizontal gaze nystagmus (HGN) test where Sergeant Ruelle observed six out of six indicators of impairment. Sergeant Ruelle asked Martinson if he would come back to the patrol vehicle and Martinson consented. Martinson also consented to a pat-down before sitting down in the passenger seat of the patrol vehicle. The pat-down revealed a set of keys later identified as the vehicle keys. Sergeant Ruelle asked Martinson to take a breath test, which Martinson initially consented to, but withdrew consent after seeking clarification.

         [¶ 5] Martinson was arrested for actual physical control. The bases for the arrest were Sergeant Ruelle's observation of Martinson's poor balance, slurred speech, bloodshot watery eyes, the results of the HGN test, the odor of alcohol coming from Martinson, and Martinson's admission to driving within the time frame of drinking.

         [¶ 6] Martinson was read the North Dakota consent advisory and acknowledged understanding it. Martinson consented to a blood draw. The blood draw showed an alcohol concentration of at least eight one-hundredths of one percent by weight.

         [¶ 7] Martinson requested an administrative hearing. The hearing officer found that Sergeant Ruelle did not stop or seize Martinson when he approached him and spoke with him in the driveway of Martinson's residence nor when he asked to speak with him in the patrol car. Moreover, the hearing officer found that even if Martinson was detained, Sergeant Ruelle had a reasonable and articulable basis to investigate further based on his observations of Martinson. The hearing officer ordered Martinson's license to be suspended for 180 days. Martinson subsequently requested judicial review of the hearing officer's decision by the Ward County District Court in accordance with N.D.C.C. § 39-08-01. The district court affirmed the agency's decision.

         II

         [¶ 8] Martinson argues he was unlawfully seized when the officers approached Martinson in his driveway because they ...


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