State v. Lee, 20110121.

• Decision Date: 17 May 2012
• Docket Number: No. 20110121.,20110121.
• Parties: STATE of North Dakota, Plaintiff and Appellee, v. Jens Stephen LEE, Defendant and Appellant.
• Court: North Dakota Supreme Court

816 N.W.2d 782

2012 ND 97

STATE of North Dakota, Plaintiff and Appellee,

v.Jens Stephen LEE, Defendant and Appellant.

No. 20110121.

Supreme Court of North Dakota.

May 17, 2012.

Tristan Jones Van de Streek (argued), Assistant State's Attorney, Cass County Courthouse, Fargo, ND, for plaintiff and appellee.

Jesse Nathan Lange (argued) and Kyle David Kemmet (on brief), Fargo, ND, for defendant and appellant.

CROTHERS, Justice.

[¶ 1] Jens Stephen Lee appeals from a judgment of conviction for driving under the influence of intoxicating liquor or drugs. We affirm, concluding the district court did not err by denying Lee's motion to suppress chemical test results.

I

[¶ 2] 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.

[¶ 3] The Intoxilyzer test results indicated Lee's blood alcohol content was above the legal limit, and he was charged with driving under the influence of intoxicating liquor in violation of N.D.C.C. § 39–08–01. Lee moved to suppress the Intoxilyzer test results, arguing he was denied the right to consult with an attorney before submitting to the test. The district court denied the motion to suppress, and Lee entered a conditional guilty plea under N.D.R.Crim.P. 11(a)(2), reserving his right to appeal from the judgment and challenge the denial of his motion to suppress.

II

[¶ 4] Lee contends the district court erred in denying his motion to suppress evidence of the Intoxilyzer test results, claiming his statement to the arresting officer that “I've got to have Cash give me a good try” invoked his statutory right to consult with an attorney before submitting to the chemical test and triggered the officer's duty to provide a reasonable opportunity for Lee to do so.

[¶ 5] “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.” Kasowski v. Dir., N.D. Dep't of Transp., 2011 ND 92, ¶ 6, 797 N.W.2d 40;see also In re R.P., 2008 ND 39, ¶¶ 11–12, 745 N.W.2d 642;State v. Pace, 2006 ND 98, ¶ 6, 713 N.W.2d 535;Eriksmoen v. Dir., N.D. Dep't of Transp., 2005 ND 206, ¶ 8, 706 N.W.2d 610. We have outlined the scope of the limited statutory right: “An arrested person who asks to speak with an attorney before taking a chemical test must be given a reasonable opportunity to do so if it does not materially interfere with the test administration.” In re R.P., at ¶ 11 (quoting State v. Berger, 2001 ND 44, ¶ 17, 623 N.W.2d 25).

[¶ 6] In Baillie v. Moore, 522 N.W.2d 748, 750 (N.D.1994), this Court adopted a self-described bright-line rule for determining whether an arrestee has invoked the right to consult with an attorney before submitting to a chemical test, thereby triggering the officer's duty to provide a reasonable opportunity for the arrestee to do so:

“We refuse to indulge in a case-by-case search for magical words which must be uttered by an arrestee as a prerequisite to being given an opportunity to consult an attorney. Rather, we hold that if a DUI arrestee, upon being asked to submit to a chemical test, responds with any mention of a need for an attorney—to see one, to talk to one, to have one, etc.—the failure to allow the arrestee a reasonable opportunity to contact an attorney prevents the revocation of his license for refusal to take the test.... Our intent is to set forth a ‘bright line’ test to determine when an arrestee must be allowed a reasonable opportunity to consult with an attorney before deciding whether to take a chemical test. If the arrestee responds with any affirmative mention of a need for an attorney, law enforcement personnel must assume the arrestee is requesting an opportunity to consult with an attorney and must allow a reasonable opportunity to do so.”

[¶ 7] In this case, Lee told the arresting officer at the scene of the arrest that he had “to have Cash give me a good try” or that “he'd be getting a hold of Cash,” who the officer understood was Lee's attorney. Lee claims these statements were sufficient to invoke his right to counsel. The State contends Lee did not expressly ask to contact an attorney before deciding whether to submit to a chemical test, but “merely mentioned an attorney's name and indicated a general desire to fight the charge.” The State also stresses Lee's statement about the attorney came several minutes after the officer asked him to submit to the Intoxilyzer test and as they were casually conversing while waiting in the patrol car.

[¶ 8] The district court made findings after the suppression hearing, including:

“Mr. Lee did not make any request to contact his attorney prior to submitting to the chemical test. Although he did mention the name ‘Cash’ in conversing with [the arresting officer], he communicated no desire to contact his attorney prior to submitting to the chemical test. Instead, his statements are of a general nature and only mention retaining ‘Cash’ to defend him in order to ‘protect his livelihood.’ At no time did Mr. Lee state that he wished to consult with an attorney prior to taking the chemical test and the mere mention of the name ‘Cash’ does not rise to the level of a request to speak to an attorney.”

[¶ 9] Our purpose in adopting a bright-line rule was to avoid the need to engage in case-by-case consideration of the surrounding circumstances, such as the timing of the request, the alleged “casual” nature of the conversation or whether specific “magical words” were used. Baillie, 522 N.W.2d at...