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Korb v. North Dakota Department of Transportation

Supreme Court of North Dakota

October 3, 2018

Ryan Michael Korb, Appellant
v.
North Dakota Department of Transportation, Appellee

          Appeal from the District Court of Burleigh County, South Central Judicial District, the Honorable Bruce B. Haskell, Judge, Affirmed.

          Danny L. Herbel, Bismarck, ND, for appellant.

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

          OPINION

          VANDEWALLE, CHIEF JUSTICE

         [¶ 1] Ryan Michael Korb appealed from a judgment affirming a Department of Transportation decision suspending his driving privileges for ninety-one days. Korb argues (1) the arresting officer improperly included additional language before he read the statutorily required implied consent advisory, and (2) the record evidence was insufficient to establish that this blood test sample had been properly obtained. We conclude the officer did not act improperly by prefacing the implied consent advisory with accurate information. We also conclude the record evidence was sufficient to establish that the blood test sample had been properly obtained. We affirm.

         I

         [¶ 2] In August 2017, an officer initiated a traffic stop on a vehicle that appeared to be speeding. When the officer made contact with the driver, Korb, he observed that Korb had red, bloodshot, watery eyes. Korb admitted that he "felt a little buzzed." After Korb failed several field sobriety tests, the officer read the implied consent advisory and asked Korb to take a preliminary breath test. Korb consented. The preliminary breath test result was above the presumptive limit. The officer then placed Korb under arrest for driving under the influence, read him his Miranda rights, and repeated the implied consent advisory. The advisory the officer read both times stated:

As a condition of operating a motor vehicle on a highway, or on a public or private area, to which the public has right of access to, you have consented to taking a test to determine whether you are under the influence of alcohol or drugs.
I must inform you that North Dakota law requires you to submit to a chemical test to determine whether you are under the influence of alcohol. Refusal to take the test as directed by a law enforcement officer may result in a revocation of your driver's license for a minimum of 180 days and potentially up to three years.

         [¶ 3] After the second reading of the implied consent advisory, Korb consented to a chemical blood test. The blood test result showed blood alcohol levels above the legal limit.

         [¶ 4] At the administrative hearing, Korb objected to admission of the blood test and related evidence under N.D.C.C. § 39-20-01(3)(b). Korb argued the record was insufficient to show the blood sample was properly obtained and fairly administered. Korb also argued there was insufficient evidence to establish compliance with the Form 104 checklist.

         [¶ 5] During the hearing, the officer testified that the implied consent advisory given to Korb was read from a card prepared by the Burleigh County States Attorney. While discussing the blood draw, the hearing officer admitted the completed top portion of Form 104 into evidence. However, the bottom portion of the form, which contains a checklist, was not offered in evidence. Instead, the hearing officer questioned the officer on his compliance with the form's checklist.

         [¶ 6] The hearing officer denied Korb's motion to exclude evidence of the blood test and concluded that both the implied consent advisory and blood test were properly administered. The Department suspended Korb's driving privileges for ninety-one days. Korb requested judicial review of the decision. The district court affirmed the hearing officer's decision that the implied consent advisory was ...


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