Grosgebauer v. N.D. Dept. of Transportation

20070299 Jason Reid Grosgebauer, Petitioner and Appellant
v.
North Dakota Department of
Transportation, Respondent and Appellee

Appeal from: District Court, South Central Judicial District, Burleigh County
Judge Gail Hagerty
Nature of Action: Administrative Proceeding
Counsel:
Appellant: McCabe Law Firm
Appellee: Andrew Moraghan , Att. General Office
Term: 03/2008   Argument: 03/17/2008  1:30pm
ND cite: 2008 ND 75
NW cite: 747 N.W.2d 510

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Issues: Appellant's Statement of the Issues:
I:Grosgebauer was deemed to have consented to a blood draw, as provided in Section 39-20-01, N.D.C.C., and since he neither withdrew his implied consent nor affirmatively refused to participate in the blood draw, he did not refuse the chemical test, nor did he interfere with the administration of a test.
II:Grosgebauer cured any refusal when, in response to Trooper St. Aubyn telling both the jailer and Grosgebauer that he refused, Grosgebauer declared, "I did not refuse" or "I'm not refusing" and it is undisputed that, 1) there was ample time to get a blood draw, 2) there was a nurse right in the building and readily available, and 3) Grosgebauer was still in his custody and under St. Aubyn's observation the whole time.

Appellee's Statement of the Issues:
1. Whether a reasoning mind reasonably could have concluded that Grosgebauer refused to submit to Trooper St. Aubyn's request for a blood test.
2. Whether Grosgebauer cured his refusal to submit to the request for a blood test.

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Docket entries:
110/09/2007 NOTICE OF APPEAL: 10/08/2007
210/17/2007 Administrative Transcript dated June 18, 2007 (e-mailed)
311/07/2007 RECORD ON APPEAL - which includes the transcript of administrative hearing dtd 6-18-07
411/14/2007 MOTION FOR Remand to Department to Reopen Hearing. RspDue: 11/29/2007
511/29/2007 ANNOUNCED DISQUALIFICATION: Sandstrom, Dale V.
611/29/2007 Response To Motion for Remand and Appendix filed.
712/10/2007 Appellant's Reply in Support of Motion for Remand
812/12/2007 ACTION BY SUPREME COURT (Motion for Remand). Denied
912/12/2007 Reset due date for Appellant's Brief after stay of briefing schedule
1012/12/2007 ACTION BY CLERK (reset due date for Appellant's Brief). Granted: 12/28/2007
1112/28/2007 APPELLANT BRIEF
1212/28/2007 E-FILED BRIEF - ATB
1312/28/2007 APPELLANT APPENDIX
1412/28/2007 E-FILED APPENDIX - ATA
1512/31/2007 Received $25 surcharge for ATB (Receipt 17965)
1601/28/2008 APPELLEE BRIEF
1701/28/2008 APPELLEE APPENDIX
1801/28/2008 DISK of AEB (e-mailed)
1901/30/2008 Rec'd 7 copies of ATA from Central Duplicating
2001/30/2008 Rec'd 6 copies of AEA from Central Duplicating
2102/27/2008 SITTING WITH THE COURT: Bohlman, Bruce E.
2203/17/2008 APPEARANCES: Chad R. McCabe, Jason R. Grosgebauer; Andrew Moraghan
2303/17/2008 ARGUED: McCabe; Moraghan
2403/17/2008 ORAL ARGUMENT WEBCAST
2504/18/2008 DISPOSITION: AFFIRMED
2604/18/2008 UNANIMOUS OPINION: Crothers, Daniel John
2704/18/2008 Costs on appeal taxed in favor of appellee
2804/18/2008 Judgment e-mailed to Parties
2905/13/2008 MANDATE
3005/16/2008 RECEIPT SIGNED BY DISTRICT COURT CLERK'S OFFICE

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