from the District Court of Burleigh County, South Central
Judicial District, the Honorable Bruce B. Haskell, Judge,
L. Herbel, Bismarck, ND, for appellant.
Douglas B. Anderson, Assistant Attorney General, Bismarck,
ND, for appellee.
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.
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 ...