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Wetzel v. North Dakota Department of Transportation2/15/2001
Appeal from the District Court of Cass County, East Central Judicial District, the Honorable Lawrence A. Leclerc, Judge.
REVERSED.
Opinion of the Court by Neumann, Justice.
[ ] The North Dakota Department of Transportation ("Department") appeals from a district court judgment reversing the Department's one- year revocation of David John Wetzel's driver's license for refusing to take a chemical test. Because Wetzel was given a reasonable opportunity to consult with an attorney, we reverse.
I.
[ ] On January 7, 2000, at 1:18 a.m., Fargo police officer Charles Sullivan arrested Wetzel for driving under the influence . Following the arrest, Officer Sullivan recited the implied consent advisory and asked Wetzel to submit to a blood-alcohol concentration test. Wetzel said he did not understand the advisory, and Officer Sullivan explained the advisory. Wetzel said he still did not understand. Officer Sullivan asked him what part he did not understand. Wetzel replied he did not understand the legal language. Wetzel asked to call his wife. Officer Sullivan called Wetzel's wife on Officer Sullivan's cellular telephone and allowed Wetzel to speak with her. After the conversation, Officer Sullivan again asked Wetzel if he would submit to a blood test. Wetzel said he wanted to talk to an attorney. At 1:25 a.m., Officer Sullivan gave Wetzel the cellular telephone and a telephone book to try to contact an attorney. It is disputed whether Wetzel was handcuffed at the time.
[ ] Officer Sullivan testified Wetzel complained about his job and his life for a few minutes before calling and speaking to his wife again at 1:30 a.m. At 1:35 a.m., Wetzel called an attorney's office, but received no answer. Officer Sullivan testified he called the attorney's residence, trying to help Wetzel, but again received no answer. Wetzel called a second attorney's office at 1:39 a.m., but received no answer. Officer Sullivan dialed the second attorney's residential number, but received no answer. Wetzel resumed telling Officer Sullivan about his life and his job. Officer Sullivan tried to focus Wetzel on his current situation. Wetzel testified Officer Sullivan had been trying to help him contact an attorney. Officer Sullivan again recited the implied consent advisory and asked Wetzel if he understood it. Wetzel indicated he did. Officer Sullivan asked Wetzel if he would submit to the blood test, and Wetzel again stated he wanted to talk to an attorney.
[ ] At 1:48 a.m., Wetzel recited another phone number. Officer Sullivan dialed the number, believing it was an attorney's number. There was no answer. Officer Sullivan told Wetzel he had been given a reasonable amount of time to contact an attorney. Officer Sullivan told Wetzel he could have one more call, but then Wetzel would have to indicate whether he would submit to the blood test. Wetzel recited another number at 1:50 a.m. Officer Sullivan dialed the number. Again, there was no answer.
[ ] Officer Sullivan told Wetzel he would have to indicate whether he would submit to the blood test. Wetzel again said he wanted to talk to an attorney. Officer Sullivan stated he was going to ask Wetzel one final time whether he would submit to the blood test and that if Wetzel's response was anything other than a "yes," it would be considered a refusal. Wetzel asked Officer Sullivan what he meant by "refusal." Officer Sullivan explained the term and again asked Wetzel whether he would submit to a blood test. Wetzel said he wanted to talk to an attorney. Officer Sullivan told Wetzel he would be deemed to have refused to submit to the blood test. At this point, Officer Sullivan had given Wetzel 25 minutes, from
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