or subsequent statutes, except when a contrary intention plainly
appears. Apparently there was no contrary intention pertaining
to this case that was plainly apparent, and, therefore, the Supreme
Court allowed the definition of “agricultural land” in Chapter 47-
10.1 to be utilized in interpreting N.D.C.C. § 47-16.02 and the
lease at issue.
State v. Helm, 2017 ND 207
In this case, an individual was stopped by a law enforcement officer
for driving a motor vehicle without headlights at about 1:30 a.m.
The officer suspected the defendant was driving under the influence
of a controlled substance and arrested him. The defendant refused
to submit to a warrantless urine test incident to the arrest and was
charged with the crime of refusing to submit to a chemical test.
Under the rationale of the United States Supreme Court decision
in Birchfield v. North Dakota, 136 S.Ct. 2160 (2016) (concluding
the exception to the warrant requirement for a search incident to
arrest did not apply to a warrantless blood test for a controlled
substance), the District Court concluded the exception to the
warrant requirement also did not apply to a warrantless urine
test for a controlled substance and the defendant could not be
criminally prosecuted for refusing the warrantless urine test.
test was in progress. He made the request between his first and
second “blows” of the second breathalyzer testing sequence. The
District Court found that stopping the test at that point would have
materially interfered with the administration of the test and would
have resulted in a second invalid test. Because of that, the District
Court determined that defendant was not improperly denied his
statutory right to counsel.
On appeal, the Supreme Court agreed with the District Court. The
Court noted, while an arrestee has the right to consult an attorney
prior to submitting to a chemical test, it is not an unlimited right.
The right and opportunity must not materially interfere with the
test administration. Because allowing the arrestee to stop the test
prior to submitting the second sample in a test sequence would
invalidate the entire test sequence and materially interfere with the
test administration, the defendant’s limited statutory right to counsel
was not violated in this case and the District Court’s judgment as
affirmed.
The Supreme Court also noted the right of consultation with an
attorney in this case was a statutory right, not a constitutional right,
and therefore, that limited right must be balanced against the need
for an accurate and timely chemical test.
On appeal by the State, the Supreme Court concluded the
warrantless urine test was not a reasonable search incident to a
valid arrest of a suspected impaired driver,
and the driver could not be prosecuted for
refusing to submit to an unconstitutional
warrantless urine test incident to arrest.
The District Court Order granting the
defendant’s motion to dismiss was affirmed.
State v. Von Ruden,
2017 ND 185
The defendant was charged with driving
a motor vehicle while under the influence
of intoxicating liquor. Defendant moved
to suppress evidence of the breath test
records and requested an evidentiary
hearing. Defendant argued the police officer
did not follow the approved method in
administering the breath test, and also that
he was deprived of his limited statutory
right to counsel because his request to speak
with an attorney in between his first and
second “blows” of the second breathalyzer
test sequence was denied to him. He
was convicted of DUI after entering a
conditional guilty plea.
The District Court had determined that
defendant did not ask to consult an attorney
before submitting to the intoxilyzer breath
test, but only made that request while the
FALL 2017
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