SBAND Seminar Materials DUI Case Law Update Materials | Page 8

Procedure: Johnston transferred his case from the municipal court to the district court.
Johnston argued a bicycle is not a "vehicle" under N.D.C.C. § 39-08-01 and the district
court denied the motion. Johnston entered a conditionally guilty plea and the ND
Supreme Court AFFIRMED.
Holding:
N.D.C.C. § 39-01-01(95) specifically excludes human powered devices
from the definition of vehicle. However, N.D.C.C. § 39-07-01, specifically includes a
bicycle or ridden animal as a vehicle for purposes of 39-08 through 39-13. These statutes
do not conflict since the introductory language of N.D.C.C. § 39-01-01 indicates it is a
general provision. Additionally, statutory construction requires the specific to control the
general provision.
7) State v. Lee, 2012 ND 97, 816 N.W.2d 782
Prosecutor:
Defense:

Tristan Van de Streek
Jesse Lange and Kyle Kemmet

Facts:
Lee was stopped for speeding while riding his motorcycle. After failing
field sobriety tests and a preliminary screening test, Lee was arrested and agreed to
submit to an Intoxilyzer test. The in-car video shows that approximately four minutes
later, while they sat in the patrol car waiting for assistance with the motorcycle, Lee twice
told the arresting officer, "I hope you understand I've got to have Cash give me a good
try." When the officer asked what he meant, Lee answered, "Cash Aaland," the name of a
Fargo attorney. At the administrative hearing, the arresting officer testified Lee had stated
that "he'd be getting a hold of Cash." The arresting officer admitted he understood "Cash"
was a reference to Cash Aaland. After being transported to the police station, Lee made
no further reference to an attorney before submitting to the Intoxilyzer test. The arresting
officer did not provide Lee an opportunity to contact an attorney prior to administering
the Intoxilyzer test. Lee’s test result was above the legal limit.
Procedure: Lee moved to suppress the test results arguing he was denied his right to
contact an attorney before taking the test. Lee entered a conditional guilty plea after the
district court denied his motion. ND Supreme Court AFFIRMED.
Holding:
A person arrested for driving under the influence ('DUI') has a limited
statutory right under N.D.C.C. ch. 39-20 to consult with an attorney before deciding
whether to submit to a chemical test for intoxication. The Court has held previously if a
DUI arrestee responds with any mention of a need for an attorney that would trigger the
officer’s duty to provide a reasonable opportunity for the arrestee to do so.
If a DUI arrestee asked to take a chemical test makes any mention of a need for an
attorney, the arresting officer must assume the arrestee is requesting an opportunity to
consult with an attorney. However, the rule is not without limits. Lee agreed to take the
test and only made passing references to Cash. The Court clarified this rule applies in
both administrative and criminal proceedings.
IV.

Appealability Issues

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