from the District Court of Ward County, North Central
Judicial District, the Honorable Stacy J. Louser, Judge.
T. Heck, Fargo, ND, for appellant.
Michael T. Pitcher, Assistant Attorney General, Bismarck, ND,
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.
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
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
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.
8] Martinson argues he was unlawfully seized when the
officers approached Martinson in his driveway because they