Opinions

Haynes v. Dep't of Transportation 2014 ND 161
Docket No.: 20140047
Filing Date: 7/31/2014
Case Type: Appeal - Administrative - Department of Transportation
Author: McEvers, Lisa K. Fair

Highlight: The license of a person licensed in another state may still be revoked for refusing to submit to BAC testing if there is a delay in issuing the temporary operator's permit and the person is not prejudiced by the delay.
Personal service is not required for issuance of a temporary operator's permit.
The issuance of a temporary operator's permit to a person who refused testing is a basic and mandatory requirement of N.D.C.C. 39-20-03.2.

Travelers Cas. Ins. Co. of America, et al. v. Williams Co. Construction, et al. 2014 ND 160
Docket No.: 20140020
Filing Date: 7/31/2014
Case Type: Appeal - Civil - Contracts
Author: VandeWalle, Gerald

Highlight: Jury instructions must correctly and adequately inform the jury of the applicable law and must not mislead or confuse the jury.
A motion for a new trial based on a claim of insufficient evidence is reviewed under the abuse of discretion standard.

State v. Brenny 2014 ND 159
Docket No.: 20140013
Filing Date: 7/31/2014
Case Type: Appeal - Criminal - DUI/DUS/APC
Author: Per Curiam

Highlight: Conviction for driving under the influence of alcohol summarily affirmed under N.D.R.App.P. 35.1(a)(7).

Frank v. N.D. Dep't of Transportation 2014 ND 158
Docket No.: 20140082
Filing Date: 7/17/2014
Case Type: Appeal - Administrative - Department of Transportation
Author: Kapsner, Carol

Highlight: Certain foundational elements must be shown, by some form of evidence, in order to admit an analytical report under N.D.C.C. 39-20-07.
Evidence on the record must show the methods, devices, and individual administering analytical tests were approved by the director of the state crime laboratory or the director's designee.

Dickinson Education Association v. Dickinson Public School District 2014 ND 157
Docket No.: 20130350
Filing Date: 7/19/2014
Case Type: Original Proceeding - Civil - Writ of Mandamus
Author: VandeWalle, Gerald

Highlight: A petitioner seeking a writ of mandamus must show a clear legal right to performance of the particular act sought to be compelled by the writ. Whether to issue a writ of mandamus is left to the district court's sound discretion.
A school district may unilaterally issue a last-offer contract, but the last-offer contract is limited to contractual provisions for only the one school year under negotiation and may not contain provisions applicable to future school years.

State v. Ratliff (consolidated w/ 20130341 & 20130346) 2014 ND 156
Docket No.: 20130332
Filing Date: 7/17/2014
Case Type: Appeal - Criminal - Theft
Author: VandeWalle, Gerald

Highlight: Denial of a motion for new trial is reviewed under the abuse of discretion standard.
Although a motion for new trial is not necessary for appellate review, when a new trial is sought, the party making the motion is limited on appeal to the grounds presented to the trial court in the motion for a new trial.

Gullickson v. State 2014 ND 155
Docket No.: 20130397
Filing Date: 7/17/2014
Case Type: Appeal - Civil - Post-Conviction Relief
Author: Crothers, Daniel John

Highlight: Ineffective assistance of counsel is a mixed question of fact and law, which is fully reviewable on appeal.
Courts need not address both elements of the ineffective assistance of counsel test, and if a court can dispose of the case by addressing only one element, it imay do so.
Whether the failure to notify a client that a charge was improperly entered constitutes prejudice is subject to a fact-specific analysis of what happened.
An attorney's not filing a motion to suppress evidence discovered upon execution of a search warrant is ineffective assistance of counsel only if the attorney's representation fell below an objective standard of reasonableness constituting prejudice.

State v. Boehm 2014 ND 154
Docket No.: 20140045
Filing Date: 7/19/2014
Case Type: Appeal - Criminal - DUI/DUS/APC
Author: McEvers, Lisa K. Fair

Highlight: The statutory requirements to request a preliminary breath test are: (1) a traffic violation has occurred; and (2) in conjunction with the violation, the officer, on the basis of observation, formulates an opinion the driver's body contains alcohol.
Probable cause to arrest an individual for DUI exists when the officer smells an odor of alcohol coming from the vehicle; observes the individual's red, bloodshot, watery eyes; the individual admits to consuming alcoholic beverages; and the individual fails a sobriety test.
The voluntariness of consent is a finding of fact.
Consent is not coerced because a law enforcement officer advised an individual of the implied consent law.
A blood test is not unreasonable because it was conducted in a place other than a hospital.

State v. Rahier (Consolidated w/ 20140041) 2014 ND 153
Docket No.: 20140004
Filing Date: 7/17/2014
Case Type: Appeal - Criminal - Misc. Misdemeanor
Author: McEvers, Lisa K. Fair

Highlight: A law enforcement officer may have reasonable and articulable suspicion for investigatory stop when observing a vehicle circling an area coupled with an additional factor that indicates criminal activity is afoot.

State v. Smith 2014 ND 152
Docket No.: 20130398
Filing Date: 7/17/2014
Case Type: Appeal - Criminal - DUI/DUS/APC
Author: McEvers, Lisa K. Fair

Highlight: Consent is an exception to the warrant requirement.
The voluntariness of consent is determined under the totality of the circumstances.
An advisory, provided by a law enforcement officer, that informs an individual of the implied consent law, including the consequences of refusal, does not constitute per se coercion.