 |
 |
to fill out a simple form to connect to DUI Lawyers in your area.
|
|
|
|
|
State v. Berger3/5/2001
Appeal from the District Court of Morton County, South Central Judicial District, the Honorable Benny A. Graff, Judge.
AFFIRMED.
Opinion of the Court by Kapsner, Justice.
[ ] Kenneth M. Berger appeals from a criminal judgment and order, based on his guilty plea which reserved his right to appeal the trial court's denial of his motion to dismiss the charge and his motion to suppress Intoxilyzer results due to an alleged violation of his statutory right to consult with counsel. We affirm.
I.
[ ] On November 11, 1999, at about 1:00 a.m., a sheriff's deputy observed a vehicle operated by Berger driving with the passenger-side tires approximately two feet over the right fog line. The deputy obtained a radar reading of 39 mph in a 55-mph speed zone. After turning and following the vehicle, the deputy observed Berger weaving three times from the driving lane to two-to-three feet over the fog line. The deputy reported when he stopped the vehicle Berger smelled of alcohol, had glassy and bloodshot eyes, slurred his speech, fumbled for his driver's license, was unbalanced and unsteady on his feet, refused field sobriety tests because he stated he "wouldn't pass them anyway," and then became verbally abusive when the deputy arrested him for driving while under the influence of intoxicating liquor.
[ ] While seated in the back of the patrol car, the deputy read Berger the implied consent advisory, after which Berger asked: "Do I have a right to call a lawyer?" The deputy replied, "You certainly do. . . . I will give you a phone book. You can call." Berger named two local attorneys and indicated he would call one, and " f he is not there I will get [the other attorney], but I don't want to do that." The deputy also told Berger, "I will give you a reasonable amount of time. It's about twenty minutes to contact a lawyer. . . . I will give you every opportunity to call a lawyer. . . .You know, I mean that's fair. I will give you a chance to call whoever you would like." The officer audiotaped this conversation.
[ ] After the deputy brought Berger to the Law Enforcement Center, the deputy took Berger to a booking room, where he would have some privacy, and gave him a telephone book and access to a telephone. The deputy left the room for about 10 minutes; when he returned, the deputy testified Berger said he had tried to call a lawyer but was not able to reach one. The deputy testified Berger never mentioned anything about not being able to call long distance. On the other hand, Berger testified he tried to call one local attorney but got an answering machine, then tried another local attorney but "couldn't get out," and finally tried to call an attorney in Dickinson but kept getting the operator. Berger testified he told the officer he could not get through on the long-distance call, but the officer allegedly disregarded Berger's statement and only responded by asking Berger if he would take the Intoxilyzer test. An officer testified the phone records at the police station show each phone number when it is dialed. The record indicated Berger only attempted to make one phone call, and it was to a local attorney's number.
[ ] The deputy administered the Intoxilyzer test to Berger and obtained a .19% result. Berger was charged with driving while under the influence of intoxicating liquor and/or drugs or with blood alcohol content .10% or greater. Subsequently, Berger moved the court to dismiss the charge because he was "denied his constitutional right to counsel at a critical time in this case" when he allegedly could not make a long-distance call to his attorney. The trial court denied the motion, stating: "The prosecution has
Page 1 2 3 4 5 6 North Dakota DUI Attorneys
DUI Lawyers
|
| |
to fill out a simple form to connect to DUI Lawyers in your area.
|
|