SBAND Seminar Materials DUI Case Law Update Materials | Page 12

reasoning mind could conclude Dawson was driving at approximately 3:15 p.m. ND
Supreme Court REVERSED.
Holding:
The admissibility of evidence at an adjudicative hearing before an
administrative agency is governed by the North Dakota Rules of Evidence. There is no
per se rule indicating what interval is too long between a person's perception of an event
and the person's subsequent statement describing that event. The proper inquiry is
whether sufficient time elapsed to have permitted reflective thought. Hearsay statements
may not be admitted under the present sense impression exception when a sufficient lapse
in time has occurred between the event and the declarant's statement, allowing for
reflective thought. Suspension of an individual's driving privileges is improper when a
reasonable mind cannot reasonably conclude that the individual drove or was in physical
control of a vehicle within two hours of the performance of a chemical test.
5) Mees v. ND DOT, 2013 ND 36, 827 N.W.2d 345
Prosecutor:
Defense:

Michael Pitcher
Tyrone Turner

Facts:
Mees was arrested for DUI at 1:03 a.m. and transported to the Bismarck
PD arriving at 1:08 or 1:10 a.m. The arresting officer turned Mees over to another officer
for the breath test. Mees provided a breath sample at 1:25 a.m. that resulted in a .125. The
officer certified he followed the approved method of collection and the twenty-minute
wait period was ascertained.
Procedure: ND DOT suspended Mees’ license and he appealed to the district court
arguing the officer could not have ascertained whether Mees had anything to eat, drink,
or smoke for twenty minutes prior to the administration of the test based on the time
Mees arrived at the police department. The district court reversed. ND Supreme Court
REVERSED.
Holding:
Observing the subject is not the only manner of 'ascertaining' that the
subject had nothing to eat, drink, or smoke within twenty minutes prior to the collection
of the breath sample. If a fact-finder can draw reasonable inferences from the evidence
and conclude the subject could not have eaten, drank, or smoked, the twenty-minute wait
requirement has been met.
6) Morrow v. Ziegler, 2013 ND 28, 826 N.W.2d 912
Prosecutor:
Defense:

Douglas Anderson
Thomas Murtha

Facts:
Morrow was stopped for going 81 mph in a 65 mph zone. The trooper
noticed glossy, bloodshot eyes and the odor of alcohol. Morrow failed a couple of field
sobriety tests and he passed a couple others. Morrow refused the screening test. The
trooper did not believe Morrow was sufficiently intoxicated so he completed the report

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