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State v. Storbakken7/18/1996
hearing officer's determination of whether an officer has reasonable suspicion to stop a moving vehicle does not preclude litigation of the issue in the related criminal proceeding.
III.
Storbakken asserts " he trial court erred in holding that subjecting the appellant to a second breath test did not violate" section 39-20-01, NDCC. Under section 39-20-01, NDCC, "any person who operates a motor vehicle on a highway . . . is deemed to have given consent, and shall consent . . . . to a chemical test, or tests, of the blood, breath, saliva, or urine for the purpose of determining the alcohol, other drug, or combination thereof, content of the blood. We have explained that " nce a motorist is in police custody and a chemical test has been properly administered yielding a readable result, the motorist has a right to refuse any subsequent chemical tests used for determining his or her blood alcohol content." Broeckel v. Moore, 498 N.W.2d 170, 173 (N.D. 1993). A motorist may be required to submit to a reasonable request for a second test. Geiger v. Hjelle, 396 N.W.2d 302 (N.D. 1986).
In this instance, the first test record was defective and the test was aborted before Storbakken could provide breath samples. After the second test record was inserted, the officer requested Storbakken to give breath samples, which were properly recorded. Both the defective and completed test records were retained and submitted. See Bosch v. Moore, S17 N.W.2d 412 (N.D. 1994) [recognizing requirement that test records for "all tests" must be forwarded in compliance with the statute]. We conclude that the trial court did not abuse its discretion in refusing to suppress the results of Storbakken's intoxilyzer test.
We affirm the Judgement of conviction.
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