 |
 |
to fill out a simple form to connect to DUI Lawyers in your area.
|
|
|
|
|
Houn v. North Dakota Department of Transportation6/29/2000
Appeal from the District Court of Burleigh County, South Central Judicial District, the Honorable Bruce B. Haskell, Judge.
AFFIRMED.
Opinion of the Court by Sandstrom, Justice.
[ ] Robert Houn appealed from a judgment affirming a North Dakota Department of Transportation decision revoking his driving privileges for one year. We conclude the Department's finding Houn failed to timely cure his refusal to submit to a blood-alcohol test is supported by a preponderance of the evidence. We affirm.
I.
[ ] Bismarck police officer Glen Valley observed Houn driving erratically at 1:10 a.m. on October 10, 1999. Valley stopped Houn and, while speaking with him, detected the odor of alcohol. Valley asked Houn to perform several field sobriety tests, which Houn failed. Valley arrested Houn at about 1:30 a.m. for driving under the influence , and transported him to the Bismarck police station. Valley advised Houn about the implied consent law and his rights under Miranda v. Arizona, 384 U.S. 436 (1966). Valley asked Houn to submit to an Intoxilyzer test to measure his blood-alcohol concentration. Houn indicated he wanted to speak to a specific attorney, but he was unable to contact that attorney. Houn was informed several times about the implied consent law, and he insisted on contacting a specific attorney before submitting to a blood-alcohol test. Houn was unable to contact the attorney, and he stated he would not take a test without legal representation. Finally, Officer Sinclair, a certified Intoxilyzer operator on duty at the police station, left the station and went back on patrol. Valley testified Houn subsequently indicated he would take the test at about 2:50 a.m., but Valley, who was not a certified Intoxilyzer operator, informed Houn it was too late.
[ ] The Department sought to revoke Houn's driving privileges for one year because he refused to take a blood-alcohol test. An administrative hearing officer decided Houn's attempt to cure his prior refusal to take a test was not timely under the requirements of Lund v. Hjelle, 224 N.W.2d 552 (N.D. 1974). The hearing officer found:
The implied consent advisory was given to Mr. Houn several times. Mr. Houn wanted to talk with an attorney, was given opportunities to call an attorney, but was not successful in reaching the attorney of his choice. Mr. Houn said that he would not take the test without legal representation. Mr. Houn was offered several opportunities to take an Intoxilyzer test, all of which he refused. Eventually, Mr. Houn was told that the end of the two-hour period within which testing must be completed was approaching and that this would be treated as a refusal. The Intoxilyzer operator left the police department in order to go back on patrol. At 2:50 a.m., Officer Valley issued a Report & Notice to Mr. Houn. Around the time that the Report & Notice indicating a refusal was handed to Mr. Houn, Mr. Houn stated that he would submit to testing for alcohol concentration. Mr. Houn's statement was probably made two or three minutes before 2:50 a.m. Test results, if obtained before 3:10 a.m., would still have been accurate. Time available for testing was therefore no more than 20 to 23 minutes. That Saturday night (including early Sunday morning) was a very busy night for the Bismarck Police Dept., and no more than 6 or 7 police officers were on duty, of whom only two were qualified operators for the Intoxilyzer. In an ideal situation, Intoxilyzer testing could have been completed in as little as 14 minutes. In this case, the situation was not ideal because an Intoxilyzer operator was not immediately available and an Intoxilyzer machine was not immediately available.
Page 1 2 3 4 5 North Dakota DUI Attorneys
DUI Lawyers
|
| |
to fill out a simple form to connect to DUI Lawyers in your area.
|
|