Opinions

Matter of Hehn 2008 ND 36
Docket No.: 20070167
Filing Date: 2/21/2008
Case Type: Appeal - Civil - Civil Commitment of Sexually Dangerous Individual
Author: Kapsner, Carol

Highlight: In a civil commitment of a sexually dangerous individual, the fact that actuarial test scores do not give rise to scores showing a high re-offending risk does not preclude the fact-finder from coming to an alternative conclusion.
The importance of independent judicial decision-making means the court, rather than the test scores or the psychologists who create them, is the ultimate decision-maker as to whether the State has met its burden of clear and convincing evidence to sustain a civil commitment for a sexually dangerous individual.

State of Michigan, ex. rel. Schneider v. Schneider, et al. 2008 ND 35
Docket No.: 20070230
Filing Date: 2/21/2008
Case Type: Appeal - Civil - Child Support
Author: VandeWalle, Gerald

Highlight: Any deviation from the child support guidelines requires the court to make a written finding or a specific finding on the record.
Child support must be ordered in the presumptive amount unless, taking into consideration the best interests of the children, the court finds the presumptive amount is not the correct amount of child support.

People to Save the Sheyenne River, et al. v. Dept. of Health, et al. 2008 ND 34
Docket No.: 20070118
Filing Date: 2/21/2008
Case Type: Appeal - Civil - Administrative Proceeding
Author: Crothers, Daniel John

Highlight: The Health Department's decision to modify a North Dakota Pollutant Discharge Elimination System permit will not be reversed on appeal unless the decision is arbitrary, capricious, or unreasonable.
An administrative agency has a reasonable range of discretion to apply its own regulations, and the agency's expertise is entitled to deference when the subject matter is complex.
A North Dakota Pollutant Discharge Elimination System permit may be modified for cause, which includes new information or to correct a technical mistake.

State v. Lium 2008 ND 33
Docket No.: 20070135
Filing Date: 2/21/2008
Case Type: Appeal - Criminal - Assault
Author: Kapsner, Carol

Highlight: A plea agreement for a specific sentence or sentencing range which is binding on a district court may be accepted, rejected, or deferred until the court has reviewed a presentence report.
After a guilty plea has been accepted but before sentencing, a defendant may withdraw the plea if necessary to correct a manifest injustice, or if allowed in the court's discretion for any fair and just reason unless the prosecution has been prejudiced by reliance on the plea.
A district court misapplies the law if a motion to withdraw a guilty plea is made before sentencing and the court does not decide whether there was a fair and just reason for withdrawal of the plea.

State v. Fischer (Cross-Ref. w/20050437 & 20060153) 2008 ND 32
Docket No.: 20060140
Filing Date: 2/21/2008
Case Type: Appeal - Criminal - Drugs/Contraband
Author: VandeWalle, Gerald

Highlight: Consent to search may be given by parties with actual or apparent authority, when viewed from the officer's perspective.
When ineffective assistance of counsel is raised on direct appeal, an appellate court reviews the record to determine if counsel was plainly defective.
Before accepting a waiver of the right to counsel, the district court must determine whether the waiver was voluntary and was made knowingly and intelligently.
A criminal defendant who knowingly and intelligently waives the right to counsel and elects self-representation, and who has been appointed standby counsel, is not constitutionally entitled to access to a law library.
Pretrial bail issues are moot after conviction, unless the amount prejudiced the defendant in the preparation of his defense.
A presumptively prejudicial delay of one year or more does not alone create a speedy-trial violation.
Government employment does not constitute an implied bias for purposes of excusing a juror.

State v. Skarsgard 2008 ND 31
Docket No.: 20070223
Filing Date: 2/21/2008
Case Type: Appeal - Criminal - Misc. Felony
Author: Kapsner, Carol

Highlight: Under N.D.R.Crim.P. 12(b), a defendant is required to make certain motions before trial, and failure to do so may waive defenses under the rule.
The Supreme Court may grant relief from a waiver if the movant establishes just cause.

Lies v. N.D. Dept. of Transportation 2008 ND 30
Docket No.: 20070257
Filing Date: 2/21/2008
Case Type: Appeal - Administrative - Department of Transportation
Author: Kapsner, Carol

Highlight: Individuals arrested for DUI must be afforded a reasonable opportunity to consult with counsel before deciding whether to submit to a chemical test.
The failure to allow a DUI arrestee a reasonable opportunity to consult with a lawyer after the arrestee has made such a request prevents the revocation of his driver's license for refusal to take a chemical test.
There are no bright-line rules for determining whether a "reasonable opportunity" to consult with an attorney has been afforded; rather, the determination of whether a reasonable opportunity has been provided turns on an objective review of the totality of the circumstances.

Patten v. State 2008 ND 29
Docket No.: 20070144
Filing Date: 2/21/2008
Case Type: Appeal - Civil - Post-Conviction Relief
Author: Crothers, Daniel John

Highlight: A lawyer must abide by a competent defendant's decision regarding the plea to be entered.
If a defendant is competent and voluntarily pleads guilty, the defendant waives the right to raise the defense of lack of criminal responsibility when the acts occurred.

State v. Kochel 2008 ND 28
Docket No.: 20070174
Filing Date: 2/21/2008
Case Type: Appeal - Criminal - Drugs/Contraband
Author: Crothers, Daniel John

Highlight: Whether an individual has a reasonable expectation of privacy is reviewed de novo.

State v. Schmalz (CONSOLIDATED w/20070128) 2008 ND 27
Docket No.: 20070127
Filing Date: 2/21/2008
Case Type: Appeal - Criminal - Drugs/Contraband
Author: Kapsner, Carol

Highlight: Probable cause exists when the facts and circumstances relied upon by the judge who issues the warrant would lead a person of reasonable caution to believe the contraband or evidence sought probably will be found in the place to be searched.
"Bare-bones" information is not sufficient to satisfy the probable cause requirement for a warrant.
The determination of whether probable cause exists to issue a search warrant is a question of law.
Simply because a warrant application contains some information that is not relevant, or is, in and of itself, insufficient to create probable cause, does not necessarily mean probable cause did not exist to validly issue the warrant.
While the our state constitution may, in certain instances, provide greater individual rights than those afforded under the federal constitution, like the Fourth Amendment, Article I, section 8 of the North Dakota Constitution is not implicated unless a reasonable expectation of privacy is invaded.