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Luebke v. North Dakota Department of Transportation6/5/1998
Dissent filed.
Appeal from the District Court for McKenzie County, Northwest Judicial District, the Honorable William W. McLees, Judge.
REVERSED AND REMANDED.
Luebke v. North Dakota Department of Transportation Civil No. 970337 Meschke, Justice.
[ ] Donald Luebke appealed a judgment affirming the Department of Transportation's suspension of his driving license for 365 days for driving a motor vehicle under the influence of alcohol. Luebke claims he was deprived of his right under NDCC 39-20-02 to an independent blood test. We reverse and remand to the agency for further proceedings.
[ ] At 7:44 p.m. on May 3, 1997, while patrolling U.S. Highway 85, Trooper Bonness of the Highway Patrol stopped Luebke for speeding. Luebke admitted he "had had a few in Alexander," and Bonness did field sobriety tests. Luebke passed the HGN and one-leg-stand tests, but failed the walk-and-turn test. After Bonness gave Luebke the implied consent advisory, Luebke agreed to an Alco-Sensor breath test, but he failed it. Bonness arrested Luebke for driving under the influence of alcohol. Bonness again read the implied consent advisory to Luebke and asked Luebke to take an Intoxilyzer test. Luebke asked to speak to an attorney, and Bonness took him to the Watford City Law Enforcement Center. There, Bonness gave Luebke a telephone and telephone book. Luebke called his parents and made several unsuccessful attempts to reach an attorney. Between phone calls, McKenzie County Sheriff's Deputy Fulwider booked Luebke.
[ ] Bonness told Luebke at 9:24 p.m. to make a decision on the Intoxilyzer test. Luebke agreed to the test, but said he had eaten a piece of beef jerky ten minutes earlier. Because neither Bonness nor the deputy had seen Luebke eat anything and they did not smell jerky on Luebke's breath, Bonness gave Luebke the test. At 9:43 p.m., within two hours after he had been stopped, the test showed Luebke had a blood alcohol concentration of .11 percent.
[ ] Bonness issued Luebke a Report and Notice, placed him in custody of the Sheriff's office, and left the Center. Moments later, a radio dispatcher contacted Bonness, who was still in the Center parking lot talking to Deputy Fulwider. The dispatcher told Bonness that Luebke had requested an independent blood test. Bonness consulted his North Dakota Highway Patrol Policy Manual:
Additional Test Requested by the Person Arrested
1. NDHP officers will assist the defendant in obtaining a second test after the officer completes his/her test. If a second test is requested by the defendant, the following procedure will be utilized:
a. The officer will transport the defendant to the testing site (hospital), if another procedure in that county is not already set up to facilitate the second test.
b. The officer will transport only if the travel time is not more than 30 miles one way; and, only when the defendant is still in the custody of the officer; and, when the officer has not lost visual contact with the individual.
c. If transportation is provided and the second test is taken, the officer will witness the test and inform the individual the second test is to be paid for by him/her. In addition, the responsibility for mailing, custody of the sample, and obtaining reports or results of the test will also be borne by the defendant.
Bonness then informed the dispatcher he would not transport Luebke for a blood test, and if Luebke wanted an independent test, "he would have to get it on his own."
[ ] At the administrative hearing, Fulwider testified he had heard both Luebke's request and Bonness' response, b
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