Opinions

Maisey v. N.D. Department of Transportation 2009 ND 191
Docket No.: 20090194
Filing Date: 11/17/2009
Case Type: Appeal - Administrative - Department of Transportation
Author: VandeWalle, Gerald

Highlight: Checking boxes on the bottom of the report and notice form, without providing a more detailed written explanation, can be sufficient to show probable cause to believe a driver was driving under the influence of alcohol.
A driver is afforded a reasonable opportunity to consult with a lawyer when an officer gave him the lawyer's home telephone number and the driver called the lawyer and left a message.
When a driver creates ambiguity regarding whether he or she will submit to chemical testing, the driver cannot complain about any reasonable interpretation of the driver's words and actions by the officer.
To cure a prior refusal to submit to chemical testing, a driver must make a clearly articulated reconsideration.

State v. Kurtenbach (cross-reference w/20080338 through 20080340) 2009 ND 190
Docket No.: 20090113
Filing Date: 11/17/2009
Case Type: Appeal - Criminal - Misc. Felony
Author: Per Curiam

Highlight: A criminal judgment entered upon guilty pleas to one count of forgery and two counts of unauthorized use of personal identifying information is summarily affirmed under N.D.R.App.P. 35.1(a)(7).

Lemer v. N.D. Workforce Safety & Insurance, et al. 2009 ND 188
Docket No.: 20090158
Filing Date: 11/17/2009
Case Type: Appeal - Administrative - Workers Compensation
Author: Per Curiam

Highlight: A district court judgment affirming an order of Workforce Safety & Insurance is summarily affirmed under N.D.R.App.P. 35.1(a)(5).

Ernst v. State 2009 ND 187
Docket No.: 20090192
Filing Date: 11/17/2009
Case Type: Appeal - Civil - Post-Conviction Relief
Author: Per Curiam

Highlight: District court's order denying application for post-conviction relief is summarily affirmed under N.D.R.App.P. 35.1(a)(1),(6), and (7).

State v. Johnson 2009 ND 186
Docket No.: 20090147
Filing Date: 11/17/2009
Case Type: Appeal - Criminal - Misc. Felony
Author: Maring, Mary

Highlight: A criminal judgment entered after a jury convicted the defendant of criminal trespass is summarily affirmed under N.D.R.App.P. 35.1(a)(3) and (7).

Matter of E.W.F. (CONFIDENTIAL) 2009 ND 185
Docket No.: 20090082
Filing Date: 11/17/2009
Case Type: Appeal - Civil - Civil Commitment of Sexually Dangerous Individual
Author:

Highlight: Order denying petition for discharge from commitment as a sexually dangerous individual summarily affirmed under N.D.R.App.P. 35.1(a)(2) and (7).

AmeriFirst Home Improvement Finance Co. v. Kile, et. al 2009 ND 184
Docket No.: 20090187
Filing Date: 11/17/2009
Case Type: Appeal - Civil - Debtor/Creditor
Author:

Highlight: District court judgment ordering payment of a contractual debt is summarily affirmed under N.D.R.App.P. 35.1(a)(2) and (6).

Thompson, et al. v. Schmitz, et al. 2009 ND 183
Docket No.: 20080191
Filing Date: 10/16/2009
Case Type: Appeal - Civil - Contracts
Author: Maring, Mary

Highlight: Although a pleading may be impliedly amended by the introduction of evidence which varies the theory of the case and which is not objected to on the grounds it is not within the issues in the pleadings, consent to try an issue outside the pleadings cannot be implied from evidence which is relevant to the pleadings but which also bears on an unpleaded issue.
Equity regards as done that which ought to have been done.
Corporate assets belong to the corporation, not to the shareholders.

State v. Ness 2009 ND 182
Docket No.: 20090046
Filing Date: 10/15/2009
Case Type: Appeal - Criminal - Misc. Misdemeanor
Author: Maring, Mary

Highlight: To have standing to raise a vagueness challenge, a litigant must almost always demonstrate that the law in question is vague as applied to his own conduct, without regard to its potentially vague application in other circumstances.
A court may refuse to give jury instructions that are irrelevant or inapplicable.
The opportunity to cross-examine a witness is the primary mode of safeguarding a defendant's confrontation rights, but the scope of the cross-examination is in the court's discretion.

Martin v. N.D. Department of Transportation 2009 ND 181
Docket No.: 20090105
Filing Date: 10/13/2009
Case Type: Appeal - Administrative - Department of Transportation
Author: Crothers, Daniel John

Highlight: Police checkpoints are not per se unconstitutional under the Fourth Amendment of the United States Constitution or Article I, Section 8 of the North Dakota Constitution. A checkpoint seizure is unconstitutional if it is unreasonable.
The reasonableness of a checkpoint seizure is determined by balancing three prongs: the gravity of the public concerns served by the seizure, the degree to which the seizure advances the public interest and the severity of the interference with individual liberty. The weight given each prong is based on its underlying facts, and the underlying facts are viewed within the totality of the circumstances.
The gravity of the public concern addressed by a checkpoint seizure is measured by the magnitude of the societal harm caused by a specific problem.
The degree to which a checkpoint advances the public interest calls for a searching examination of the checkpoint's effectiveness.
The severity of interference with individual liberty caused by a checkpoint seizure is measured by gauging the objective and subjective levels of intrusion on individual motorists. A checkpoint's objective level of intrusion is measured by the duration of the seizure and the intensity of the investigation. A checkpoint's subjective level of intrusion is measured by the fear and surprise engendered in law-abiding motorists by the nature of the stop.