Opinions

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Ebach v. N.D. Dep't of Transportation 2019 ND 80
Docket No.: 20180290
Filing Date: 3/13/2019
Case Type: TRANSPORTATION DEPT.
Author: McEvers, Lisa K. Fair

Highlight: At a hearing under N.D.C.C. 39-20-05, the regularly kept records of the director and state crime laboratory may be introduced; once introduced, those records establish prima facie their contents without further foundation.

Once a chemical breath test record is admitted into evidence, establishing prima facie its contents, a party may rebut the presumption of fair administration by establishing a deviation from approved procedures or a lack of fair administration despite compliance with approved procedures.

Unless the defendant produces enough evidence to rebut the foundation of fair administration, evidence discrediting chemical breath test results will affect the weight given the test results not their admissibility.

Steps not expressly included in the approved method published by the State Toxicologist are not foundational requirements for the admission of chemical breath test records.

City of Fargo v. Nikle 2019 ND 79
Docket No.: 20180292
Filing Date: 3/13/2019
Case Type: DUI/DUS
Author: McEvers, Lisa K. Fair

Highlight: An affirmative defense jury instruction will only be given if there is evidence to support it.

A district court does not abuse its discretion by denying a requested jury instruction on the affirmative defense of necessity when the proponent of the instruction fails to present evidence on one of the elements of the necessity defense.

The necessity defense has not yet been recognized or precluded in a criminal case by this Court.

Cockfield v. City of Fargo 2019 ND 77
Docket No.: 20180336
Filing Date: 3/13/2019
Case Type: WRIT OF MANDAMUS (Civil)
Author: Jensen, Jon J.

Highlight: A public employee, who has a property interest in his employment, may not have his employment terminated without due process.
Due process requirements are met when the employee is provided with appropriate pre-termination and post-termination proceedings.

Baker Boyer National Bank v. JPF Enterprises, LLC 2019 ND 76
Docket No.: 20180222
Filing Date: 3/13/2019
Case Type: CONTRACTS
Author: Crothers, Daniel John

Highlight: The relationship between a bank and its customers is a debtor-creditor relationship, which ordinarily does not impose a fiduciary duty upon the bank.

A fiduciary relationship may arise between a bank and its borrowers under circumstances reflecting a borrower’s reposing of faith, confidence and trust in a bank with a resulting domination, control or influence exercised by the bank over the borrower’s affairs.

Purdy v. Purdy, et al. 2019 ND 75
Docket No.: 20180133
Filing Date: 3/13/2019
Case Type: CHILD CUST & SUPPORT (Div.\Other)
Author: Crothers, Daniel John

Highlight: A district court’s decision on a motion to modify primary residential responsibility is a finding of fact, subject to the clearly erroneous standard of review.

City of Bismarck v. King 2019 ND 74
Docket No.: 20180138
Filing Date: 3/13/2019
Case Type: DUI/DUS
Author: McEvers, Lisa K. Fair

Highlight: The criminal offense of refusal to submit to chemical testing is a strict liability offense.

State v. Nice 2019 ND 73
Docket No.: 20180350
Filing Date: 3/13/2019
Case Type: DUI/DUS
Author: VandeWalle, Gerald W.

Highlight: A defendant may not challenge the constitutionality of a statute they were not charged under.

A defendant who refuses to take a chemical test cannot rely solely on multiple recitations of the implied consent advisory to prove violations of due process rights.

The Court will not address inadequately briefed issues.

State v. Laverdure 2019 ND 72
Docket No.: 20180228
Filing Date: 3/13/2019
Case Type: DRUGS/CONTRABAND
Author: VandeWalle, Gerald W.

Highlight: Sufficient probable cause existed to support the magistrate’s issuance of a search warrant.

State v. Rai 2019 ND 71
Docket No.: 20180244
Filing Date: 3/13/2019
Case Type: SEXUAL OFFENSE
Author: VandeWalle, Gerald W.

Highlight: District court did not err in admitting lawfully obtained text message conversation from an undercover officer’s cell phone into evidence.

District court did not err in finding Miranda warnings were knowingly, voluntarily, and intelligently waived by defendant.

Defendant did not meet his burden of proof for N.D.R.Crim.P. Rule 29(a) motion for acquittal.

A rational fact-finder could find defendant failed to prove entrapment by a preponderance of the evidence.

Chisholm v. State 2019 ND 70
Docket No.: 20180340
Filing Date: 3/13/2019
Case Type: POST-CONVICTION RELIEF
Author: Jensen, Jon J.

Highlight: We distinguish peremptory demands for a change of judge from a demand for a change of judge based on bias.

Under N.D.C.C. § 29-15-21, subsequent applications for post-conviction relief are a continuation of the underlying action and considered a single proceeding.

Motions seeking the recusal of a judge for bias or prejudice must be considered by the judge who is sought to be disqualified.

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