Brewer v. Ziegler
v.
Francis G. Ziegler, Director,
Department of Transportation, Respondent and Appellee
Judge Georgia Dawson
| Appellant: | Vogel Law Firm | |
| Appellee: | Andrew Moraghan , Att. General Office | |
| Appellee: | Michael Trent Pitcher , Att. General Office |
Listen to recording of oral argument
using RealPlayer Basic,© a free download.
I.The seizure and arrest were unlawful
A. The arresting officer lacked seizure and arrest authority
B.The Appellant was unlawfully seized
II. The Department of Transportation lacked jurisdiction
III. The Hearing Officer erred in admission of evidence
A. Consideration of the preliminary breath test was unlawful
B. The horizontal gaze test should not have been considered
C. Consideration of unwarned custodial statements was unlawful
D. The admissible evidence was insufficient to support the Hearing Officer's conclusions
Reply Brief Issues
I. The seizure and arrest were unlawful
A.The arresting officer lacked seizure and arrest authority
B. The Appellant was unlawfully seized
II. The Department of Transportation lacked jurisdiction
III.The Hearing Officer erred in admission of evidence
A. Consideration of the preliminary breath test was unlawful
B. The horizontal gaze test should not have been considered
C. Consideration of unwarned custodial statements was unlawful
D. The admissible evidence was insufficient to support the Hearing Officer's conclusions
Appellee's Statement of the Issues:
North Dakota Highway Patrol Trooper Robert Arman ("Trooper Arman") observed Nancy Brewer's ("Brewer") vehicle stopped in a parking lot/field; Brewer's husband was seated in the passenger seat leaning out of the vehicle's opened door. The trooper stopped to see if everything was okay. Trooper Arman, in his caretaking role, made observations leading him to believe Brewer might be intoxicated. The trooper properly tested Brewer and established probable cause existed to arrest Brewer under the highway patrol's statutory directive to enforce drunk driving laws. An Intoxilyzer test established Brewer was legally intoxicated. Was Trooper Arman within his authority to investigate, and ultimately arrest, Brewer for actual physical control ("APC") of a vehicle while under the influence of alcohol?
Trooper Arman forwarded a completed report and notice form to the Department. The form must contain an adequate statement of probable cause to arrest in order for the Department to attain the authority to suspend driving privileges. The probable cause statement in this case sufficiently met this jurisdictional requirement. Did the Department have the authority to suspend Brewer's driving privileges?
Finally, Brewer alleges the administrative hearing officer should not have considered evidence of Brewer's failed horizontal gaze nystagmus test or her failure of a preliminary breath test. Brewer also alleges the hearing officer should not have considered statements made by Brewer to Trooper Arman. Was it proper for the hearing officer to consider this evidence?
Add Docket 20070152 RSS