Opinions

State v. Kleppe (consolidated w/20110029) 2011 ND 141
Docket No.: 20100354
Filing Date: 7/13/2011
Case Type: Appeal - Criminal - Misc. Misdemeanor
Author: Maring, Mary

Highlight: The defense of depredation does not apply to the offense of unlawfully taking and possessing big game because deer is not a fur-bearer.
The offense of unlawfully taking and possessing big game is a strict liability offense because the statute defining the offense does not contain a culpability requirement. A statute establishing a strict liability offense, however, does not always preclude an affirmative defense.
A defendant may be entitled to a jury instruction on excuse and his conduct may be excused if the evidence shows the defendant believed the facts were such that his conduct was necessary and appropriate for any of the purposes that would establish a justification or excuse under N.D.C.C. ch. 12.1-05, even though his belief was mistaken. A mistaken belief of the law is rarely available as a defense and is generally precluded when the offense is a strict liability offense that contains no culpability requirement.
At a restitution hearing, the State has the burden of proving the amount of restitution by a preponderance of the evidence.

Silbernagel, et al. v. Silbernagel, et al. (Consol. w/ 20100394 & 20100395) 2011 ND 140
Docket No.: 20100393
Filing Date: 7/13/2011
Case Type: Appeal - Civil - Contracts
Author: Kapsner, Carol

Highlight: When a settlement agreement is merged into a judgment, the agreement is interpreted and enforced as a final judgment and not as a separate contract between the parties.
A judgment is construed to give effect to each and every part of it and bring all different parts into harmony as far as can be done by a fair and reasonable interpretation.
Parties' objective manifestations from a settlement agreement and judgment, rather than their secret or subjective manifestations of intent, control the interpretation of the judgment.

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.