Jesser v. N.D. Dept. of Transportation
Annotate this CaseThe North Dakota Department of Transportation appeals from a judgment reversing the decision of an administrative hearing officer revoking Corey Joseph Jesser’s driving privileges for 180 days. Jesser refused to take a sobriety test and was arrested for driving under the influence. The hearing officer found Peterson had reason to believe Jesser was involved in a traffic accident as the driver, Jesser’s body contained alcohol, and he refused to submit to the onsite screening test. The hearing officer found the arresting police officer had reasonable grounds to believe Jesser was driving or in actual physical control of a vehicle while under the influence of intoxicating liquor. The hearing officer found Jesser was arrested and refused to submit to the chemical breath test. The license was revoked for 180 days based on Jesser's refusal of the onsite screening and chemical tests. Notwithstanding these findings, the district court reversed the hearing officer's decision. Refusal of the screening test could have been cured by consenting to take the chemical test after arrest; Jesser argued a statutory opportunity to consult with an attorney before deciding whether to submit to the chemical test was deprived. Whether the statutory right to counsel before chemical testing under N.D.C.C. 39-20-01 impacted the right to cure under N.D.C.C. 39-20-14 was a question of first impression for the North Dakota Supreme Court. After review, the Court determined the limited statutory right of a defendant to consult with an attorney before taking a chemical test attached only after arrest. The Court rejected the argument that a post-arrest limited statutory right to counsel created a pre-arrest right because an individual was deprived of a post-arrest remedy. The Court reversed the district court judgment and reinstated the hearing officer's decision revoking Jesser's driving privileges.
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