Opinions

State v. Stroh 2011 ND 139
Docket No.: 20100157
Filing Date: 7/13/2011
Case Type: Appeal - Criminal - DUI/DUS/APC
Author: Kapsner, Carol

Highlight: The admissibility of an Intoxilyzer test result is governed by N.D.C.C. 39-20-07(5).
Fair administration of an Intoxilyzer test may be established by proof that the State Toxicologist's approved method for conducting the test has been scrupulously followed. However, "scrupulous" compliance does not mean "hypertechnical" compliance.
The admissibility of a test result for alcohol concentration is a preliminary question left to the discretion of the trial court.
Observing the person to be tested is not the only manner of "ascertaining" that the subject had nothing to eat, drink, or smoke within twenty minutes prior to the collection of the breath sample.

Vanlishout v. ND Dept. of Transportation 2011 ND 138
Docket No.: 20110017
Filing Date: 7/13/2011
Case Type: Appeal - Civil - Administrative Proceeding
Author: Sandstrom, Dale

Highlight: Actual physical control does not require that the defendant be able to instantaneously operate the vehicle. Rather, defendant must be able to manipulate the controls of the vehicle and must be under the influence of intoxicating liquor, drugs, or other substances.

State v. McElya 2011 ND 137
Docket No.: 20100349
Filing Date: 7/13/2011
Case Type: Appeal - Criminal - Theft
Author: Kapsner, Carol

Highlight: Double jeopardy is a defense that may be waived and must be raised at some point in proceedings before the district court.

Crandall v. Crandall 2011 ND 136
Docket No.: 20100402
Filing Date: 7/13/2011
Case Type: Appeal - Civil - Child Support
Author: Crothers, Daniel John

Highlight: The child support guidelines require a parent who does not have primary residential responsibility of a child to pay child support to the parent awarded primary residential responsibility.
Financial misconduct and dissipation of assets are grounds for an unequal property distribution.

Willits v. Job Service of ND, et al. 2011 ND 135
Docket No.: 20100375
Filing Date: 7/13/2011
Case Type: Appeal - Administrative - Unemployment/Job Service
Author: Crothers, Daniel John

Highlight: To be eligible for unemployment benefits, the employee must make reasonable efforts to preserve one's employment.
An employee who voluntarily quits before the employer has been given a reasonable chance to resolve identified problems is not entitled to unemployment benefits.

Krueger v. Krueger 2011 ND 134
Docket No.: 20100264
Filing Date: 7/13/2011
Case Type: Appeal - Civil - Child Support
Author: Sandstrom, Dale

Highlight: While the district court may not solely rely on a child's preferences regarding visitation, they may be a relevant consideration in the best interests of the child analysis.
In calculating a parent's child support obligation, the district court must clearly set forth how it arrived at a net income figure.

Gussiaas v. Neustel (cross-reference 20100086) 2011 ND 133
Docket No.: 20100386
Filing Date: 7/13/2011
Case Type: Appeal - Civil - Child Support
Author: Per Curiam

Highlight: Change of primary residential responsibility is summarily affirmed under N.D.R.App.P. 35.1(a)(2).

Smith v. Martinez 2011 ND 132
Docket No.: 20100309
Filing Date: 7/13/2011
Case Type: Appeal - Civil - Child Support
Author: Kapsner, Carol

Highlight: A court must address the presumption against awarding primary residential responsibility to the perpetrator of domestic violence when there is evidence of domestic violence on the record.

State v. Aabrekke 2011 ND 131
Docket No.: 20100170
Filing Date: 7/13/2011
Case Type: Appeal - Criminal - Sexual Offense
Author: Crothers, Daniel John

Highlight: Evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show action in conformity therewith, but may be admissible for other purposes such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident.
In considering whether evidence of prior crimes, wrongs, or bad acts is admissible, a court must apply a three-step analysis to determine: (1) the purpose for which the evidence is introduced; (2) that the evidence of the prior acts is substantially reliable or clear and convincing; and (3) in criminal cases that there is proof of the crime charged which permits the trier of fact to establish the defendant's guilt or innocence independently on the evidence presented without consideration of the evidence of the prior acts.
A court must give a cautionary instruction about the limited purpose for the use of prior bad acts evidence and must further determine whether the probative value of the evidence substantially outweighs any possible prejudicial effect of the evidence.

State v. Ennen 2011 ND 130
Docket No.: 20110003
Filing Date: 7/13/2011
Case Type: Appeal - Criminal - Sexual Offense
Author: Per Curiam

Highlight: Criminal judgment for surreptitious intrusion is summarily affirmed under N.D.R.App.P. 35.1(a)(3) and (7).