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Krueger v. North Dakota Department of Transportation

Supreme Court of North Dakota

May 8, 2018

Courtney Thomas Krueger, Appellant
v.
North Dakota Department of Transportation, Appellee

          Appeal from the District Court of Traill County, East Central Judicial District, the Honorable Susan L. Bailey, Judge.

          Drew J. Hushka (argued), Moorhead, MN, and Mark A. Friese (appeared), Fargo, ND, for appellant.

          Douglas B. Anderson, Assistant Attorney General, Bismarck, ND, for appellee.

          OPINION

          McEvers, Justice.

         [¶ 1] Courtney Krueger appeals from a judgment affirming a decision of the Department of Transportation suspending his driving privileges for two years. Because the Traill County sheriff's deputy had jurisdiction to make the arrest in Grand Forks County and Krueger's statutory rights and constitutional rights were not violated by the deputy's administration of three breath tests, we affirm.

         I

         [¶ 2] The hearing officer found that during the early morning hours of June 3, 2017, a Traill County sheriff's deputy observed Krueger driving erratically while leaving Hatton and heading north on Highway 18. The deputy activated the emergency lights on his patrol vehicle while in Traill County, but Krueger's vehicle continued north while slowing down for about one minute before stopping "approximately 1/2 mile north of mile marker 139" in Grand Forks County. The deputy testified this was "about a quarter mile north into Grand Forks County." The deputy observed that Krueger's speech was slurred, his eyes were bloodshot, and he smelled of alcohol. The deputy ordered Krueger out of the vehicle and began conducting field sobriety tests. During the traffic stop, a Grand Forks County sheriff's deputy, who learned of the situation only after scanning the Traill County Sheriff's Office radio, arrived at the scene. The Traill County deputy continued the field sobriety tests, which Krueger failed.

         [¶ 3] The Traill County deputy placed Krueger under arrest for driving under the influence after he failed an onsite screening test and the Grand Forks County deputy assisted with a search of Krueger's vehicle. The Traill County deputy transported Krueger for 30 to 40 minutes to the Traill County Sheriff's Office in Hillsboro. Krueger was given a breath test which registered a blood alcohol concentration of 0.146 percent. Realizing he had failed to read the implied consent advisory to Krueger before the first test, the deputy gave the advisory and again asked Krueger to take a breath test. Krueger did, but this test was automatically terminated because the machine detected radio frequency interference. The deputy asked again if Krueger would take the breath test and, after being reminded of the consequences for refusal, Krueger consented. The third test revealed a blood alcohol concentration of 0.141 percent.

         [¶ 4] Krueger did not testify or offer any evidence at the administrative license suspension hearing. Krueger challenged the jurisdictional validity of his arrest in Grand Forks County by a Traill County sheriff's deputy, and the admissibility of the breath test results after the deputy requested that he take the test three times. The hearing officer found the Traill County deputy was in "fresh pursuit" of Krueger when he initiated the traffic stop and N.D.C.C. § 11-15-33(2) allowed the deputy to complete the arrest. The hearing officer also determined the breath test result was admissible because "[g]iven the circumstances in this case, administering the three tests was reasonable" and Krueger "offered no evidence of prejudice." The Department suspended Krueger's driving privileges for two years, and the district court affirmed the Department's decision.

         II

         [¶ 5] Krueger argues the Department erred in suspending his driving privileges because the arresting officer lacked jurisdiction and the breath test results were admitted in evidence in violation of his constitutional rights.

         [¶ 6] We must affirm the Department's order unless, in part pertinent to this case, the following are present:

1. The order is not in accordance with the law.
2. The order is in violation of the constitutional rights of ...

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