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City of Mandan v. Leno10/26/2000
Appeal from the District Court of Morton County, South Central Judicial District, the Honorable Robert O. Wefald, Judge.
REVERSED AND REMANDED.
Opinion of the Court by VandeWalle, Chief Justice.
[ ] The City of Mandan appealed from an order suppressing evidence in connection with a charge of driving while under the influence of intoxicating liquor. The trial court expanded the limited statutory right to a reasonable opportunity to consult with an attorney by holding the right existed prior to arrest. We reverse and hold the limited statutory right for a reasonable opportunity to consult with an attorney attaches only after arrest. We remand for a factual finding of whether or not Brian Quentin Leno invoked his right to consult with his attorney after arrest, prior to consenting to the ultimate evidentiary chemical test.
[ ] On the evening of October 9, 1999, Officer Lonnie Grabowska of the Mandan Police Department was patrolling the downtown district of Mandan. At about 9:30 p.m. the officer observed a small white truck pull out of a parking lot in downtown Mandan. The truck made a wide turn, accelerated quickly, swerved, and crossed over onto the oncoming lane of traffic. The officer paced the truck's speed at 45 miles per hour in a 25 mile per hour zone. At this point, the officer stopped the vehicle.
[ ] The officer approached the vehicle and asked the driver, Brian Quentin Leno, for his license. Leno's eyes were red and glossy in appearance and the officer detected a strong odor of alcoholic beverage. The officer recognized the passenger as an attorney with whom he had previously been in contact in DUI cases. The officer asked Leno if they had been drinking and Leno stated they had been drinking and they were just coming from the bar.
[ ] The officer asked Leno if he would submit to some testing to verify his ability to operate his motor vehicle. Leno consented. The officer conducted four field sobriety tests outside the vehicles, between the truck and the patrol car. The officer then read Leno the implied consent advisory and asked if he would consent to an on-site prebreathalyzer screening test. At this point, Leno asked if he could speak to his attorney, who remained seated in the truck. The officer explained that since Leno was not under arrest, he did not have a right to counsel prior to the on-site screening test. Leno consented to the on-site screening test which was also performed outside, between the two vehicles. Leno failed the test and the officer placed him under arrest for driving under the influence of alcohol.
[ ] Leno was placed in the squad car, informed of the implied consent advisory for a blood test, and asked if he would submit to a blood test at the Law Enforcement Center. The officer testified Leno did not again ask to speak to his attorney at this point. Leno claims he did ask to speak with his attorney at this point. The district court noted this dispute but did not make a factual finding of whether or not Leno repeated his request to speak with his attorney after arrest. Leno was transported to the Law Enforcement Center where a blood test was administered. Following the administration of the blood test, Leno was allowed to consult with his attorney who had also been transported to the Law Enforcement Center. Leno was charged with the class B misdemeanor offense of driving while under the influence of intoxicating liquor in violation of Section 20-19-01 of the Mandan Municipal Ordinances. Leno moved to suppress the blood test evidence. The district court granted the motion.
[ ] Questions of law are fully reviewable on appeal. Thompson v. Associated Potato Growers, Inc., 2000 ND
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