Opinions

Riemers v. State of North Dakota, et al. 2008 ND 101
Docket No.: 20070317
Filing Date: 6/2/2008
Case Type: Appeal - Civil - Constitutional Law
Author: Crothers, Daniel John

Highlight: When the Supreme Court denies a petition to review a Court of Appeals decision, the decision becomes final and will not be differently determined on a subsequent appeal in the same case.
A trial court is considered an expert in determining the amount of attorney fees, and its decision concerning the amount and reasonableness of the attorney's fees will not be overturned on appeal absent a clear abuse of discretion.
Paralegal costs may be included in reasonable attorney's fees.

Guardianship/Conservatorship of D.M.O. (cross-reference 20040235) 2008 ND 100
Docket No.: 20060280
Filing Date: 5/23/2008
Case Type: Appeal - Civil - Guardian/Conservator
Author: Crothers, Daniel John

Highlight: The Supreme Court will dismiss an appeal when issues become moot or academic and there is no actual controversy left for our determination.
An actual controversy no longer exists when the issue has been rendered moot by a lapse of time, or the occurrence of related events which make it impossible for a court to grant effective relief.

Larson v. Hagerty, et al. 2008 ND 99
Docket No.: 20080056
Filing Date: 5/19/2008
Case Type: Appeal - Civil - Torts (Negligence, Liab., Nuis.)
Author:

Highlight: A district court judgment dismissing a complaint which alleged that state officials had deprived the appellant access to the courts is summarily affirmed under N.D.R.App.P. 35.1(a)(7).

Reopelle v. Workforce Safety and Insurance, et al. 2008 ND 98
Docket No.: 20070240
Filing Date: 5/15/2008
Case Type: Appeal - Administrative - Workers Compensation
Author: VandeWalle, Gerald

Highlight: Unless otherwise provided, statutes in effect on the date of an injury govern a claimant's right to collect workers compensation benefits.
The five-year limit for partial disability benefits applies to claimants who have partial loss of earnings capacity occurring after June 30, 1991.

Waldie v. Waldie 2008 ND 97
Docket No.: 20070342
Filing Date: 5/15/2008
Case Type: Appeal - Civil - Divorce - Property
Author: Sandstrom, Dale

Highlight: A district court's decision regarding redistribution of marital property and debt is reviewed under an abuse-of-discretion standard.
A redistribution of marital property and debt is warranted when there is a noncompliance with a court order that results in a significant shift in equity.

State v. $33,000 U.S. Currency, et al. 2008 ND 96
Docket No.: 20070336
Filing Date: 5/15/2008
Case Type: Appeal - Civil - Other
Author: Kapsner, Carol

Highlight: A district court's denial of a motion for relief from a default judgment will be reversed if the court abused its discretion.
A district court should be more lenient when entertaining motions to vacate default judgments as distinguished from judgments entered after a trial on the merits.
Whether an appearance has been made for purposes of N.D.R.Civ. P. 55(a) is a question of law.
An appearance is any response sufficient to give the plaintiff or his or her attorney notice of an intent to contest the claim.

Riemers v. Mahar 2008 ND 95
Docket No.: 20070232
Filing Date: 5/15/2008
Case Type: Appeal - Civil - Torts (Negligence, Liab., Nuis.)
Author: Crothers, Daniel John

Highlight: A public figure is prohibited from recovering damages for defamatory criticism unless there is clear and convincing evidence that the statements were made with actual malice.
Summary judgment is appropriate against a party who fails to establish the existence of a factual dispute on an essential element of his claim and on which he will bear the burden at trial.

State v. Schwab (Consolidated w/20070277) 2008 ND 94
Docket No.: 20070276
Filing Date: 5/15/2008
Case Type: Appeal - Criminal - DUI/DUS/APC
Author: Crothers, Daniel John

Highlight: Once a blood alcohol test report is admitted into evidence, a court abuses its discretion by refusing to permit a DUI defendant to examine the analyst who performed the chemical testing, if the analyst is present at court.

State v. Curtis (cross ref. 20070250 & 20070333) 2008 ND 93
Docket No.: 20070249
Filing Date: 5/15/2008
Case Type: Appeal - Criminal - Misc. Misdemeanor
Author: Crothers, Daniel John

Highlight: A criminal conviction will be reversed for insufficient evidence only when, after viewing the evidence and all reasonable evidentiary inferences in the light most favorable to the verdict, no rational factfinder could have found the defendant guilty beyond a reasonable doubt.
Threats are statements by which the speaker means to communicate a serious expression of an intent to commit an act of unlawful violence to a particular individual or group of individuals.

Walberg v. Walberg, et al. 2008 ND 92
Docket No.: 20070259
Filing Date: 5/15/2008
Case Type: Appeal - Civil - Child Support
Author: Maring, Mary

Highlight: Statutes are construed to harmonize them and avoid an unreasonable result or unjust consequence.
An agreement purporting to waive past-due child support is void and may not be enforced unless the child support obligee and any assignee of the obligee have consented to the agreement in writing and the agreement has been approved by a court of competent jurisdiction.

Voisine v. State 2008 ND 91
Docket No.: 20070313
Filing Date: 5/15/2008
Case Type: Appeal - Civil - Post-Conviction Relief
Author: Kapsner, Carol

Highlight: Conditions of probation are strictly construed in favor of the offender; however, the conditions are construed as mandatory because of the duty to regulate a probationer's activities to help in his or her rehabilitation and at the same time to guard against continued criminal behavior.
A probation condition is not violated during incarceration if the condition unambiguously is not effective until release.

Krueger v. Krueger 2008 ND 90
Docket No.: 20070196
Filing Date: 5/15/2008
Case Type: Appeal - Civil - Divorce - Property
Author: Maring, Mary

Highlight: A spousal support award must consider a disadvantaged spouse's needs and a supporting spouse's ability to pay.
Permanent spousal support is appropriate when an economically disadvantaged spouse cannot be equitably rehabilitated to make up for opportunities lost during the course of a marriage, while rehabilitative spousal support is appropriate when it is possible to restore an economically disadvantaged spouse to independent economic status, or to equalize the burden of a divorce by increasing the disadvantaged spouse's earning capacity.
Voluntary retirement by a supporting spouse that results in a material change in circumstances may be a valid basis for modification of spousal support.

Interest of I.B.A. and C.B.A. (CONFIDENTIAL)(Consolidated w/20070334) 2008 ND 89
Docket No.: 20070328
Filing Date: 5/15/2008
Case Type: Appeal - Juvenile - Termination of Parental Rights
Author: VandeWalle, Gerald

Highlight: While there is no constitutional right to appear at the hearing, a parent must be represented by counsel at a hearing to terminate parental rights, absent a valid waiver of counsel.
A district court should make in-depth individual findings regarding each parent, rather than combining the parents together in its analysis of whether the children are deprived and whether deprivation is likely to continue.

Teigen, et al. v. State 2008 ND 88
Docket No.: 20070134
Filing Date: 5/15/2008
Case Type: Appeal - Civil - Constitutional Law
Author: Kapsner, Carol

Highlight: A court can decide constitutional issues if at least one plaintiff has standing.
All regularly enacted statutes carry a strong presumption of constitutionality, which is conclusive unless the party challenging the statute clearly demonstrates it contravenes the state or federal constitution.
The justice, wisdom, necessity, utility and expediency of legislation are questions for the legislative, and not for judicial determination.
Statutes are construed as a whole and harmonized to give meaning to related provisions and are construed to avoid constitutional infirmities.
A statute requiring the wheat commission to expend two mills of a wheat tax for contracts with no more than two trade associations incorporated in North Dakota that have as their primary purpose the representation of wheat producers does not violate state constitutional provisions prohibiting special laws, special privileges and immunities, and gifts.

Hoover v. Director, N.D. Dept. of Transportation 2008 ND 87
Docket No.: 20070258
Filing Date: 5/15/2008
Case Type: Appeal - Administrative - Department of Transportation
Author: Crothers, Daniel John

Highlight: Eyewitness testimony is not necessary to establish reasonable grounds to believe a person was driving under the influence; circumstantial evidence is sufficient.
If a police officer has probable cause to arrest a suspect, the officer has the right to accompany and monitor the movements of the suspect.

Interest of T.E. (Confidential) 2008 ND 86
Docket No.: 20080034
Filing Date: 5/15/2008
Case Type: Appeal - Civil - Mental Health
Author: Kapsner, Carol

Highlight: A district court must to make all four factual findings in an involuntary medication order, whether the involuntary medication order is included as part of the larger commitment order or when a medication order is issued separately.

Ike v. Director, N.D. Dept. of Transportation 2008 ND 85
Docket No.: 20070302
Filing Date: 5/15/2008
Case Type: Appeal - Administrative - Department of Transportation
Author: Sandstrom, Dale

Highlight: The issuance of a temporary operator's permit to a driver having an alcohol concentration exceeding the per se limit is a basic and mandatory requirement under N.D.C.C. 39-20-03.1. The issuance of the permit serves as the Department's official notification to the driver of the Department's intent to revoke, suspend, or deny driving privileges.
An officer's error as to a provision that is not basic and mandatory to the Department's authority to proceed is not reversible when there is no prejudice.

State v. Gay 2008 ND 84
Docket No.: 20070348
Filing Date: 5/15/2008
Case Type: Appeal - Criminal - Drugs/Contraband
Author: Kapsner, Carol

Highlight: Under the Fourth Amendment, a seizure occurs whenever an officer stops an individual and restrains his freedom, and that seizure must be reasonable.
A search, under the Fourth Amendment, occurs when the government intrudes upon an individual's reasonable expectation of privacy.
A pat-down search is not simply a routine preliminary to a more extensive search.
The exclusionary rule prohibits the admission of physical and testimonial evidence gathered illegally.

State v. Vaagen 2008 ND 83
Docket No.: 20070337
Filing Date: 5/15/2008
Case Type: Appeal - Criminal - Misc. Felony
Author:

Highlight: A criminal conviction of failure to pay child support is summarily affirmed under N.D.R.App.P. 35.1(a)(3).

State v. Feist 2008 ND 82
Docket No.: 20070305
Filing Date: 5/15/2008
Case Type: Appeal - Criminal - Misc. Misdemeanor
Author:

Highlight: A criminal judgment for fleeing or attempting to elude a police officer is summarily affirmed under N.D.R.App.P. 35.1(a)(2), (3) and (4).

Interest of C.J., S.J., and K.W. (CONFIDENTIAL) (consolidated w/20070315) 2008 ND 81
Docket No.: 20070314
Filing Date: 5/15/2008
Case Type: Appeal - Civil - Juvenile Law
Author:

Highlight: A juvenile court judgment terminating parental rights is summarily affirmed under N.D.R.App.P. 35.1(a)(2) and (3).

Ward, et al. v. Bullis, et al. 2008 ND 80
Docket No.: 20070188
Filing Date: 4/25/2008
Case Type: Appeal - Civil - Contracts
Author: Sandstrom, Dale

Highlight: An attorney may be liable for securities law violations if he is an agent who effects or attempts to effect the purchase or sale of securities, and he aids or participates in any way in the sale or contract for sale made in violation of the Securities Act.
Summary judgment is appropriate when either party is entitled to judgment as a matter of law and no dispute exists as to either the material facts or the inferences to be drawn from undisputed facts, or resolving the factual disputes would not alter the result.

Manske v. Workforce Safety and Insurance 2008 ND 79
Docket No.: 20070173
Filing Date: 4/23/2008
Case Type: Appeal - Administrative - Workers Compensation
Author: VandeWalle, Gerald

Highlight: A worker's employment need not be the sole cause of injury to be compensable. It is sufficient if a work condition is a substantial contributing factor to the disease.
The fact that an employee may have physical conditions or personal habits which make him or her more prone to such an injury does not constitute a sufficient reason for denying a claim.

Haugenoe v. Workforce Safety and Insurance, et al. 2008 ND 78
Docket No.: 20070099
Filing Date: 4/22/2008
Case Type: Appeal - Administrative - Workers Compensation
Author: Maring, Mary

Highlight: Section 65-01-09, N.D.C.C., does not grant WSI a subrogation interest in an injured worker's legal malpractice claim against an attorney who committed malpractice in handling the injured worker's claim against a third-party tortfeasor.

Sandvick, et al. v. LaCrosse, et al. 2008 ND 77
Docket No.: 20070146
Filing Date: 4/18/2008
Case Type: Appeal - Civil - Oil, Gas and Minerals
Author: Sandstrom, Dale

Highlight: The crucial elements of a partnership are (1) an intention to be partners, (2) co-ownership of the business, and (3) a profit motive.
For a business enterprise to constitute a joint venture, the following four elements must be present: (1) contribution by the parties of money, property, time, or skill in some common undertaking, but the contributions need not be equal or of the same nature; (2) a proprietary interest and right of mutual control over the engaged property; (3) an express or implied agreement for the sharing of profits, and usually, but not necessarily, of losses; and (4) an express or implied contract showing a joint venture was formed. There is, however, no fixed formula for identifying the joint venture relationship in all cases, and each case will depend upon its own unique facts.
Principles of partnership law apply to the joint venture relationship.
Joint venturers, like copartners, owe to one another, while the enterprise continues, the duty of the finest loyalty.

Disciplinary Board v. O'Donnell (Consolidated w/ 20080085) 2008 ND 76
Docket No.: 20080084
Filing Date: 4/18/2008
Case Type: Discipline - Attorney - Original Proceeding
Author: Per Curiam

Highlight: Lawyer is suspended from the practice of law for two years, but the suspension is stayed for two years on conditions. Interim suspension is vacated.

Grosgebauer v. N.D. Dept. of Transportation 2008 ND 75
Docket No.: 20070299
Filing Date: 4/18/2008
Case Type: Appeal - Civil - Administrative Proceeding
Author: Crothers, Daniel John

Highlight: Whether a driver affirmatively refused to submit to alcohol testing is a determination of fact that is significantly reliant on the credibility of witnesses.
To cure a refusal to submit to alcohol testing, the consent to submit to testing must be clearly articulated and meet other criteria.

Stockman Bank of Montana v. AGSCO, Inc., et al.(Cross Ref w/20060174) 2008 ND 74
Docket No.: 20070357
Filing Date: 4/18/2008
Case Type: Appeal - Civil - Contracts
Author: VandeWalle, Gerald

Highlight: Where a party is erroneously ordered to pay another, the party is entitled to interest at the legal rate set by N.D.C.C. 47-14-05, when the judgment is later reversed.

State v. Jacobson 2008 ND 73
Docket No.: 20070103
Filing Date: 4/17/2008
Case Type: Appeal - Criminal - Assault
Author: Maring, Mary

Highlight: An appearance of partiality requiring a judge's disqualification does not automatically result from a judge's casual or social acquaintance with a witness.
A disqualified judge whose withdrawal from a case is not mandatory has the option of either withdrawing or disclosing to the parties on the record the basis for his disqualification.
A party seeking to disqualify a judge from a proceeding must file a timely motion.
A party who knows the facts that would form the basis of disqualification prior to entry of a judgment against him waives his right to disqualification of a judge by failing to request disqualification until after the judge enters a judgment adverse to that party.

Bateman v. City of Grand Forks 2008 ND 72
Docket No.: 20070217
Filing Date: 4/17/2008
Case Type: Appeal - Civil - Real Property
Author: Sandstrom, Dale

Highlight: A court's review of special assessments for local improvements is limited to assuring that local taxing authorities do not act arbitrarily, capriciously, or unreasonably.
Special assessments for local improvements are presumed valid, and the burden is on the party challenging the validity to demonstrate they are invalid.
A special assessment against any property must not exceed the benefit the property receives from the improvement.
A special assessment commission has broad discretion to choose the method used to decide benefits and assess individual properties.

Lynnes v. Lynnes 2008 ND 71
Docket No.: 20070274
Filing Date: 4/17/2008
Case Type: Appeal - Civil - Divorce - Property
Author: Kapsner, Carol

Highlight: The district court's valuation of property is a finding of fact which will be reversed on appeal only if it is clearly erroneous. When the district court's valuation is within the range of evidence provided by the parties, the district court's valuation will not be set aside, unless this Court has a definite and firm conviction a mistake has been made.
A relatively insignificant error in valuation of a marital asset will not, standing alone, constitute sufficient grounds for reversal of the judgment.
If substantial amount of debts are excluded from the marital estate, it is not clear that the district court would have reached the same result in allocating the assets and debts had it correctly included the debts as part of the marital estate before allocating the debts between the parties.

State v. Gendron 2008 ND 70
Docket No.: 20070199
Filing Date: 4/17/2008
Case Type: Appeal - Criminal - Theft
Author: Crothers, Daniel John

Highlight: Restitution orders will be affirmed unless the district court acted outside the limits set by statute, which is similar to an abuse of discretion standard.
The prosecution has the burden of proving the amount of restitution by a preponderance of the evidence.
Evidentiary imprecision on the amount of damages does not preclude recovery by restitution.

State v. Loomer (Consolidated w/20070236-20070239) 2008 ND 69
Docket No.: 20070235
Filing Date: 4/17/2008
Case Type: Appeal - Criminal - Misc. Felony
Author: VandeWalle, Gerald

Highlight: For a not guilty plea, the Rules of Criminal Procedure do not require specific notice of a mandatory minimum sentence.
Unless a defendant was prejudicially misled, neither an error in the citation nor its omission is a ground to dismiss the indictment or information or to reverse a conviction under N.D.R.Crim.P. 7(c)(2).

Wenzel Estate v. Wenzel 2008 ND 68
Docket No.: 20070264
Filing Date: 4/17/2008
Case Type: Appeal - Civil - Real Property
Author: VandeWalle, Gerald

Highlight: A trial court's findings in a partition action will not be reversed on appeal unless they are clearly erroneous.
A trial court's equitable powers in partition actions do not include the power to order one party to buy out the other party's share of jointly owned property.

Oyloe v. ND Department of Human Services 2008 ND 67
Docket No.: 20070251
Filing Date: 4/17/2008
Case Type: Appeal - Civil - Administrative Proceeding
Author: Maring, Mary

Highlight: A Medicaid-qualifying trust is considered an available asset for Medicaid eligibility purposes.
A resulting trust in favor of the settlor arises not only where an intended trust fails altogether but also where it fails in part, and where the trust fails in part, there is a resulting trust of so much of the property as is not appropriated to the part of the trust that does not fail.
Public policy will not allow the social safety net for persons who are old, poor, and unfortunate to be exploited by those who are affluent.

State v. Hidanovic 2008 ND 66
Docket No.: 20070130
Filing Date: 4/17/2008
Case Type: Appeal - Criminal - Misc. Felony
Author: Sandstrom, Dale

Highlight: In considering whether to grant a new trial on the ground of juror misconduct, a district court must decide whether there was misconduct and, if so, whether the misconduct could have affected the verdict of a hypothetical average juror.
A juror generally may not testify about matters or statements occurring during the course of the jury's deliberations, but may testify regarding the receipt of extraneous prejudicial information or improper outside influence.
If evidence of possible extraneous prejudicial information or outside influence is discovered, the proper procedure is to cease investigation to reduce the possibility of juror taint from extrajudicial pressures and to notify the court so it can conduct appropriate questioning.
The rule excluding juror testimony about statements during deliberations does not preclude evidence to show a juror lied during voir dire.
To prevail on a motion for new trial on the ground of newly discovered evidence, a defendant must show the evidence was discovered after trial, the failure to learn about the evidence at the time of trial was not the result of the defendant's lack of diligence, the newly discovered evidence is material to issues at trial, and the weight and quality of the newly discovered evidence would likely result in an acquittal.
In ruling on the relevancy of evidence, a district court has broad discretion to balance the probative value of the evidence against the risk of unfair prejudice.
Determining the admissibility of an out-of-court photographic identification of a defendant involves a two-step inquiry to determine whether the photographic identification procedure was suggestive, and whether the identification was, under the totality of the circumstances, reliable.

State v. Kieper 2008 ND 65
Docket No.: 20070100
Filing Date: 4/17/2007
Case Type: Appeal - Criminal - Drugs/Contraband
Author: Maring, Mary

Highlight: Mere suspicion that criminal activity is taking place, which may warrant further investigation, does not rise to the level of probable cause to support issuance of a search warrant.
Issues not raised before the district court will not be considered for the first time on appeal.

City of Fargo v. Levine 2008 ND 64
Docket No.: 20070098
Filing Date: 4/17/2008
Case Type: Appeal - Criminal - DUI/DUS/APC
Author: Crothers, Daniel John

Highlight: The government will be ordered to produce source code for the Intoxilyzer only if the defendant establishes that the code is material and that the code is within the possession, custody, or control of the government.

State v. Herbel 2008 ND 63
Docket No.: 20070344
Filing Date: 4/17/2008
Case Type: Appeal - Criminal - Drugs/Contraband
Author:

Highlight: Conviction of possession of marijuana by a driver is summarily affirmed under N.D.R.App.P. 35.1(a)(3).

Wessman v. Wessman 2008 ND 62
Docket No.: 20070069
Filing Date: 3/31/2008
Case Type: Appeal - Civil - Child Support
Author: Maring, Mary

Highlight: A district court's award of custody is treated as a finding of fact and, on appeal, will not be reversed unless it is clearly erroneous.
Under N.D.C.C. 14-09-06.1, a district court must award custody of a child to the person who will promote the best interests and welfare of the child.
When there is credible evidence of domestic violence, it dominates the hierarchy of "best interest" factors to be considered.
When a district court addresses whether evidence of domestic violence triggers the presumption under N.D.C.C. 14-09-06.2(1)(j), we require specific findings and conclusions regarding the presumption so we are not left guessing as to the court's rationale regarding the application of the presumption.

Stanhope v. Phillips-Stanhope 2008 ND 61
Docket No.: 20070137
Filing Date: 3/27/2008
Case Type: Appeal - Civil - Child Support
Author: Maring, Mary

Highlight: To constitute a material change in circumstances for a change of custody, improvements in the noncustodial parent's situation must be accompanied by a decline in the condition of the children with the custodial parent over the same period of time.

Sauby v. City of Fargo 2008 ND 60
Docket No.: 20070202
Filing Date: 3/25/2008
Case Type: Certified Question - Civil - Civil
Author: Sandstrom, Dale

Highlight: A home rule city may not impose fees for noncriminal traffic offenses that exceed the limits set forth for equivalent violations under state law.
General language in judicial opinions must be read in the context of the issues before a court.
A court will not follow opinions of the Attorney General if they are inconsistent with the statutory interpretation that the court deems reasonable.

Olson v. Workforce Safety and Insurance 2008 ND 59
Docket No.: 20070094
Filing Date: 3/25/2008
Case Type: Appeal - Administrative - Workers Compensation
Author: Maring, Mary

Highlight: Under the 2003 version of N.D.C.C. 65-01-02(5)(b), the calculation of a self-employed worker's average weekly wage was based upon the net profit shown on Schedule C of his preceding year's tax return.

Hitz v. Hitz 2008 ND 58
Docket No.: 20070211
Filing Date: 3/24/2008
Case Type: Appeal - Civil - Divorce - Property
Author: Kapsner, Carol

Highlight: A trial court must start with a presumption that all property held by either party, whether held jointly or individually, is to be considered marital property. The trial court must then determine the total value of the marital estate in order to make an equitable division of property.
After a fair evaluation of the property is made, the entire marital estate must then be equitably divided between the parties under the Ruff-Fischer guidelines.
A trial court, having the opportunity to observe demeanor and credibility, is in a far better position than an appellate court in ascertaining the true facts regarding property value, and a marital property valuation within the range of the evidence presented to the district court is not clearly erroneous.

Erickson, et al. v. Brown, et al. 2008 ND 57
Docket No.: 20070044
Filing Date: 3/24/2008
Case Type: Appeal - Civil - Contracts
Author: VandeWalle, Gerald

Highlight: A complaint is construed in the light most favorable to the plaintiff and may not be dismissed for failure to state a claim unless it discloses with certainty the impossibility of proving a claim upon which relief can be granted.
A claim for fraud applies to parties to a contract while a claim for deceit applies where there is no contract between the parties.
A promise made without any intention of performing may be deceit.
Legal issues entitling a party to a jury trial are tried to a jury before disposition of equitable issues triable to the court, and whenever the issues are so interrelated that a decision in the nonjury portion might affect the decision of the jury portion, the jury portion must be tried first.
There is no implied covenant of good faith and fair dealing in the employment context.
Nonprejudicial errors constitute harmless error and are not grounds for reversal.

Serr v. Serr 2008 ND 56
Docket No.: 20070231
Filing Date: 3/20/2008
Case Type: Appeal - Civil - Child Support
Author: VandeWalle, Gerald

Highlight: Where parties stipulate to a custody arrangement, it must be given a great deal of deference, and to provide certainty in the future, the parties must be bound by the stipulated arrangement.
When a stipulation is incorporated into a judgment, this Court is concerned only with interpretation and enforcement of the judgment, not with the underlying contract.
Child support determinations involve questions of law which are subject to the de novo standard of review, findings of fact which are subject to the clearly erroneous standard of review, and may, in some limited areas, be matters of discretion subject to the abuse of discretion standard of review.

Young v. Young 2008 ND 55
Docket No.: 20070293
Filing Date: 3/20/2008
Case Type: Appeal - Civil - Child Support
Author: Crothers, Daniel John

Highlight: To modify visitation, the moving party must establish a material change of circumstances has occurred since the prior visitation order and it is in the best interests of the child to modify the order.
A material change in circumstances sufficient to amend a visitation order is similar to, but is distinct from, a material change in circumstances sufficient to change custody.

Niemann v. Niemann 2008 ND 54
Docket No.: 20060332
Filing Date: 3/20/2008
Case Type: Appeal - Civil - Child Support
Author: VandeWalle, Gerald

Highlight: A court does not reach the consideration of the best interest factors, which include the domestic violence presumption, unless the court first finds a significant change in circumstances.
If domestic violence exists under the definition in N.D.C.C. 14-07.1-01 but does not rise to the level necessary to invoke the presumption contained in N.D.C.C. 14-09-06.2(j), there may nevertheless be a change of circumstances which may justify a change in custody under N.D.C.C. 14-09-06.6.

Buchholtz v. Director, N.D. Dept. of Transportation 2008 ND 53
Docket No.: 20070241
Filing Date: 3/20/2008
Case Type: Appeal - Administrative - Department of Transportation
Author: Kapsner, Carol

Highlight: Fair administration of an Intoxilyzer test may be established by proof that the method approved by the State Toxicologist for conducting the test has been scrupulously followed.
"Observing" a DUI arrestee is not the only manner of "ascertaining" that the arrestee had nothing to eat, drink, or smoke within the twenty minutes prior to the collection of the breath sample as required by the approved method.

State v. Jacobsen 2008 ND 52
Docket No.: 20070105
Filing Date: 3/20/2008
Case Type: Appeal - Criminal - Misc. Felony
Author: Crothers, Daniel John

Highlight: An order revoking probation is reviewed under a two-step analysis, determining (1) whether the factual finding of a probation violation was clearly erroneous and (2) whether the district court abused its discretion when it decided revocation of probation was warranted.
Although the State generally has the burden of proving by a preponderance of the evidence that the defendant violated the terms of probation, when revocation proceedings are triggered by a failure to pay restitution, the defendant has the burden to raise and prove an inability to pay restitution as ordered by the court.
A sentencing court generally may revoke probation and impose incarceration for failure to pay restitution only after considering the reason for nonpayment and whether there are adequate alternative forms of punishment, but this limitation does not apply when restitution is ordered as part of a plea agreement.

Interest of B.B. (CONFIDENTIAL) (Cross-ref. w/ 20060322) 2008 ND 51
Docket No.: 20070233
Filing Date: 3/20/2008
Case Type: Appeal - Criminal - Juvenile Law
Author: VandeWalle, Gerald

Highlight: A child is deprived if clear and convincing evidence shows the child is without the proper parental care necessary for the child's physical, mental, or emotional health, or morals, and the deprivation is not due primarily to the lack of financial means of the child's parents or guardians.
Reasonable efforts to preserve and reunite families must be made before the placement of a child in foster care, to prevent or eliminate the need for removing the child from the child's home, and to make it possible for a child to return safely to the child's home.

State v. Brockel 2008 ND 50
Docket No.: 20070139
Filing Date: 3/20/2008
Case Type: Appeal - Criminal - Drugs/Contraband
Author: Sandstrom, Dale

Highlight: An officer can order a driver to sit in the patrol car when the officer issues a citation.
To justify a pat-down search, an officer must have a reasonable suspicion the person is armed and dangerous, or the person consented to the search.

Makedonsky v. ND Department of Human Services 2008 ND 49
Docket No.: 20070183
Filing Date: 3/20/2008
Case Type: Appeal - Civil - Administrative Proceeding
Author: Crothers, Daniel John

Highlight: An applicant for Medicaid benefits has the burden of proving eligibility.
An applicant for Medicaid benefits may be required to initiate an appropriate legal action to make an asset available for purposes of calculating eligibility for Medicaid benefits.
An attorney in fact has a relation of personal confidence with the principal and is deemed a trustee, and all transactions between a trustee and a beneficiary are presumed to be without sufficient consideration and under undue influence.

White v. Altru Health System, et al. 2008 ND 48
Docket No.: 20070031
Filing Date: 3/20/2008
Case Type: Appeal - Civil - Malpractice
Author: Crothers, Daniel John

Highlight: The medical malpractice statute in effect at the time of injury applies.

Huwe v. Workforce Safety and Insurance 2008 ND 47
Docket No.: 20070067
Filing Date: 3/20/2008
Case Type: Appeal - Civil - Administrative Proceeding
Author: VandeWalle, Gerald

Highlight: Although WSI has the authority to weigh the credibility of medical evidence and resolve conflicting medical opinions, it may not do so in an unreasoned manner but must consider the entire record, clarify inconsistencies, and adequately explain its reasons for disregarding medical evidence favorable to the claimant.
A claimant reapplying for disability benefits under N.D.C.C. 65-05-08(1) bears the burden of showing a significant change in his compensable medical condition and an actual wage loss caused by the significant change in his compensable medical condition.

Mulske v. State 2008 ND 46
Docket No.: 20070245
Filing Date: 3/20/2008
Case Type: Appeal - Civil - Post-Conviction Relief
Author:

Highlight: A district court order denying an application for post-conviction relief is summarily affirmed under N.D.R.App.P. 35.1(a)(6) and (7).

Heyen v. State 2008 ND 45
Docket No.: 20070271
Filing Date: 3/20/2008
Case Type: Appeal - Civil - Post-Conviction Relief
Author: Per Curiam

Highlight: A district court order denying an application for post-conviction relief is summarily affirmed under N.D.R.App.P. 35.1(a)(2).

State v. Tibor (Consolidated w/ 20070190 & 20070191) 2008 ND 44
Docket No.: 20070189
Filing Date: 3/20/2008
Case Type: Appeal - Criminal - Sexual Offense
Author: Per Curiam

Highlight: District court criminal judgments for guilty of gross sexual imposition are summarily affirmed under N.D.R.App.P. 35.1(a)(7).

State v. Darby (Cross Reference w/20060368 & 20060278) 2008 ND 43
Docket No.: 20070092
Filing Date: 3/20/2008
Case Type: Appeal - Criminal - Theft
Author:

Highlight: A criminal judgment for burglary and simple assault is summarily affirmed under N.D.R.App.P. 35.1(a)(4) and (7).

Disciplinary Board v. Vela (Consol. w/ 20080032; Cross ref. 20050173) 2008 ND 42
Docket No.: 20080031
Filing Date: 3/17/2008
Case Type: Discipline - Attorney - Original Proceeding
Author: Per Curiam

Highlight: Suspension of lawyer ordered

Sabo, et al. v. Keidel, et al. 2008 ND 41
Docket No.: 20070206
Filing Date: 3/3/2008
Case Type: Appeal - Civil - Probate, Wills, Trusts
Author: Maring, Mary

Highlight: Summary judgment may be appropriate in a case regarding an unambiguous trust.
Extrinsic evidence is not admissible to contradict the terms of an unambiguous trust instrument.
A life estate holder's interest in property includes both the right to possession and use including the right to profits generated by the property during the tenant's life.

Langer, et al. v. Bartholomay, et al. 2008 ND 40
Docket No.: 20070056
Filing Date: 2/29/2008
Case Type: Appeal - Civil - Contracts
Author: VandeWalle, Gerald

Highlight: Custom and usage may be given effect as part of a written contract if the agreement is silent or ambiguous on a point and there is a well-established custom concerning a subject so that the parties may be presumed to have acted with reference to the custom.
Time is generally of the essence in exercising an option, and the optionee must perform the terms of the option within the specified time and upon the terms and conditions provided in the agreement.
There are many different methods that may be used to prove damages for lost profits resulting from a breach of contract, but whichever method is used must be reasonably accurate and provide a fair basis for calculating the damages.
The injured party can recover lost profits resulting from a breach of contract only to the extent the evidence he produces affords a sufficient basis for estimating with reasonable certainty the amount of profits prevented by the breach.

Interest of R.P. (CONFIDENTIAL) 2008 ND 39
Docket No.: 20070151
Filing Date: 2/27/2008
Case Type: Appeal - Criminal - Juvenile Law
Author: Maring, Mary

Highlight: Juveniles have a statutory right to a reasonable opportunity to consult with a parent, guardian, custodian, or legal counsel before submitting to chemical testing when providing the opportunity to consult does not materially interfere with administration of the chemical test.
A totality of the circumstances test applies to determine the reasonableness of a juvenile's opportunity to consult with his or her counsel, parent, guardian, or custodian before submitting to chemical testing.

City of Minot v. Keller (Consolidated w/20070117) 2008 ND 38
Docket No.: 20070116
Filing Date: 2/25/2008
Case Type: Appeal - Criminal - DUI/DUS/APC
Author: Crothers, Daniel John

Highlight: For reasonable and articulable suspicion to stop a vehicle, officer to officer communications are presumptively reliable.

Interest of P.F. (Confidential) 2008 ND 37
Docket No.: 20070133
Filing Date: 2/21/2008
Case Type: Appeal - Civil - Civil Commitment of Sexually Dangerous Individual
Author: Kapsner, Carol

Highlight: The court must decide whether an individual who is committed because he is sexually dangerous may be discharged.
The equal protection clauses of the state and federal constitutions do not prohibit legislative classifications or require identical treatment of different groups of people.

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.

Frueh v. Frueh 2008 ND 26
Docket No.: 20070254
Filing Date: 2/21/2008
Case Type: Appeal - Civil - Child Support
Author: Sandstrom, Dale

Highlight: In considering whether the moving party has established a prima facie case warranting an evidentiary hearing on a motion to change custody, a district court may not weigh conflicting issues of fact raised in the parties' affidavits.
On appeal, the denial of an evidentiary hearing on a motion to change custody is reviewed under an abuse-of-discretion standard.

Matter of Barrera 2008 ND 25
Docket No.: 20070125
Filing Date: 2/21/2008
Case Type: Appeal - Civil - Civil Commitment of Sexually Dangerous Individual
Author: VandeWalle, Gerald

Highlight: Involuntary civil commitment of a sexually dangerous person is reviewed under a modified clearly erroneous standard of review.
Under the statute for committing a sexually dangerous person, proof of a nexus between the requisite disorder and dangerousness encompasses proof that the disorder involves serious difficulty in controlling behavior and suffices to distinguish a dangerous sexual offender whose disorder subjects him to civil commitment from the dangerous but typical recidivist in a criminal case.

Bertram v. State 2008 ND 24
Docket No.: 20070176
Filing Date: 2/21/2008
Case Type: Appeal - Civil - Post-Conviction Relief
Author: Per Curiam

Highlight: Denial of post-conviction relief is summarily affirmed under N.D.R.App.P. 35.1(a)(1), (6), and (7).

Hammer v. Director, ND Dept. of Transportation 2008 ND 23
Docket No.: 20070284
Filing Date: 2/21/2008
Case Type: Appeal - Civil - Administrative Proceeding
Author:

Highlight: Suspension of driving privileges is summarily affirmed under N.D.R.App.P. 35.1(a)(5).

Sandoval v. Department of Transportation 2008 ND 22
Docket No.: 20070295
Filing Date: 2/21/2008
Case Type: Appeal - Administrative - Department of Transportation
Author:

Highlight: Revocation of driving privileges for three years is summarily affirmed under N.D.R.App.P. 35.1(a)(5).

State v. Larson 2008 ND 21
Docket No.: 20070210
Filing Date: 2/21/2008
Case Type: Appeal - Criminal - DUI/DUS/APC
Author: Per Curiam

Highlight: A district court order dismissing a DUI criminal complaint is summarily affirmed under N.D.R.App.P. 35.1(a)(2) and (4).

State v. Gress 2008 ND 20
Docket No.: 20070298
Filing Date: 2/21/2008
Case Type: Appeal - Criminal - Misc. Felony
Author:

Highlight: Conviction of attempt to steal a vehicle is summarily affirmed under N.D.R.App.P. 35.1(a)(3) and (4).

Schumacher v. Director, N.D. Dept. of Transportation 2008 ND 19
Docket No.: 20070256
Filing Date: 2/21/2008
Case Type: Appeal - Administrative - Department of Transportation
Author:

Highlight: Revocation of driving privileges is summarily affirmed under N.D.R.App.P. 35.1(a)(5).

State v. Brandt 2008 ND 18
Docket No.: 20070172
Filing Date: 2/21/2008
Case Type: Appeal - Criminal - Assault
Author: Per Curiam

Highlight: Convictions for aggravated assault, knowing or reckless interference with a telephone during an emergency call and felonious restraint are summarily affirmed under N.D.R.App.P. 35.1(a) (3), (4) and (7).

Disciplinary Board v. O'Donnell (cross ref. 20070340) 2008 ND 17
Docket No.: 20080039
Filing Date: 2/20/2008
Case Type: Discipline - Attorney - Original Proceeding
Author: Per Curiam

Highlight: Interim suspension of lawyer orderd.

State v. Carlsen 2008 ND 16
Docket No.: 20070126
Filing Date: 2/4/2008
Case Type: Appeal - Criminal - Misc. Felony
Author: Per Curiam

Highlight: Conviction of reckless endangerment under circumstances manifesting extreme indifference to the value of human life is summarily affirmed under N.D.R.App.P. 35.1(a)(3) and (4).

Judicial Vacancy in Judgeship No. 1, East Central Judicial District 2008 ND 15
Docket No.: 20070368
Filing Date: 2/4/2008
Case Type: Judicial Administration - Rule - Rule
Author: Per Curiam

Highlight: Judgeship retained at Fargo in the East Central Judicial District.

Wold v. Wold 2008 ND 14
Docket No.: 20060342
Filing Date: 1/23/2007
Case Type: Appeal - Civil - Divorce - Property
Author: VandeWalle, Gerald

Highlight: Generally, in a divorce, a court's property valuations are not clearly erroneous if they are within the range of the evidence presented.
Under N.D.C.C. 14-05-24.1, a district court in a divorce case may require one party to pay spousal support to the other for any period of time.
Spousal support awards must be made in consideration of the disadvantaged spouse's needs and the supporting spouse's needs and ability to pay, but it is not necessary for the court to determine a spouse is disadvantaged by the divorce to award spousal support to that spouse.
Property division and spousal support are interrelated and often must be considered together.
It is within the district court's discretion to order security for a spousal support obligation.

State v. Desjarlais (Consolidated w/20070157) 2008 ND 13
Docket No.: 20070156
Filing Date: 1/22/2008
Case Type: Appeal - Criminal - Misc. Felony
Author: Sandstrom, Dale

Highlight: There is no obvious error under N.D.R.Crim.P. 52(b) unless there is a clear deviation from a clearly established rule of law.

Van Sickle, et al. v. Hallmark & Assoc., Inc., et al. 2008 ND 12
Docket No.: 20070154
Filing Date: 1/22/2008
Case Type: Appeal - Civil - Oil, Gas and Minerals
Author: Crothers, Daniel John

Highlight: A debt cannot be discharged in bankruptcy unless the creditor received notice of the bankruptcy proceedings.
State and federal courts have concurrent jurisdiction to decide whether a creditor's claim has been discharged in a bankruptcy proceeding if the creditor claims he did not have notice or actual knowledge of the bankruptcy proceeding.
Claims for conversion and breach of contract may arise under the same facts if the defendant's conduct would give rise to liability independent of the fact that a contract exists between the parties.
A claim for tortious interference ordinarily requires a showing that a person who is not a party to the contract interfered with the contract.
The Supreme Court does not issue advisory opinions.

Koble v. Koble 2008 ND 11
Docket No.: 20070198
Filing Date: 1/17/2008
Case Type: Appeal - Civil - Child Support
Author: Kapsner, Carol

Leno v. Department of Transportation 2008 ND 10
Docket No.: 20070213
Filing Date: 1/17/2008
Case Type: Appeal - Administrative - Department of Transportation
Author: Sandstrom, Dale

Highlight: The Department is not required to show an Intoxilyzer machine has been recalibrated following a movement of the machine to prove an Intoxilyzer test was fairly administered.
An agency's decision will be affirmed if its findings of fact are supported by a preponderance of the evidence. When deciding whether a preponderance of the evidence supports an agency's findings, we do not re-weigh the evidence or substitute our judgment for that of the agency.

Interest of J.S., et al. (CONFIDENTIAL) 2008 ND 9
Docket No.: 20070123
Filing Date: 1/17/2008
Case Type: Appeal - Juvenile - Termination of Parental Rights
Author: Crothers, Daniel John

Kourajian v. Kourajian 2008 ND 8
Docket No.: 20070175
Filing Date: 1/17/2008
Case Type: Appeal - Civil - Child Support
Author: VandeWalle, Gerald

Highlight: A party seeking custody modification under N.D.C.C. 14-09-06.6(4) is entitled to an evidentiary hearing if the party brings a prima facie case, by alleging, with supporting affidavits, sufficient facts which, if uncontradicted, would support a custody modification in favor of that party.
The purpose of the prima facie case requirement in N.D.C.C. 14-09-06.6(4) is to avoid holding custody modification hearings based on mere allegations alone.

City of Minot v. Boger, et al. (Cross-reference w/ 20060163) 2008 ND 7
Docket No.: 20070158
Filing Date: 1/17/2008
Case Type: Appeal - Civil - Other
Author: VandeWalle, Gerald

Highlight: The due process clauses of the federal and state constitutions are not violated under the void-for-vagueness doctrine if the challenged language, when measured by common understanding and practice, gives adequate warning of the conduct proscribed and marks boundaries sufficiently distinct for fair administration of the law.
A local government has a substantial interest in aesthetics and has the right to maintain its aesthetics through zoning regulations.

Overland v. Overland 2008 ND 6
Docket No.: 20070070
Filing Date: 1/17/2008
Case Type: Appeal - Civil - Divorce - Property
Author: Sandstrom, Dale

Highlight: A district court's division of property does not need to be equal to be equitable, but any substantial disparity must be explained.
When awarding spousal support, a district court must consider the relevant factors under the Ruff-Fischer guidelines. A court must also consider the needs of the spouse seeking support and of the supporting spouse's needs and ability to pay.

City of Grand Forks v. Mitchell 2008 ND 5
Docket No.: 20070153
Filing Date: 1/17/2008
Case Type: Appeal - Criminal - DUI/DUS/APC
Author: Maring, Mary

Highlight: A police officer's stop of a vehicle bearing no license plates with a white 8 ? x 11 sheet of paper with a date written in black marker posted in its rear window that the officer did not recognize as an authentic temporary registration certificate was constitutionally permissible because the officer had reasonable and articulable suspicion of a violation of the motor vehicle registration law.
A police officer's subjective intent is not germane for purposes of the objective inquiry used to determine whether a reasonable and articulable suspicion existed that an individual was violating the law.

State v. Wegley 2008 ND 4
Docket No.: 20070027
Filing Date: 1/17/2008
Case Type: Appeal - Criminal - Sexual Offense
Author: Kapsner, Carol

Highlight: Even if a defendant objects to hearsay testimony about a child's out-of-court statement at a pre-trial hearing, the defendant's failure to object at trial limits review to determining whether the admission of that testimony into evidence constitutes obvious error affecting substantial rights.
To establish obvious error, a defendant must show error that is plain and affects substantial rights, and to affect substantial rights a plain error must have been prejudicial, or have affected the outcome of the proceeding.
Nonverbal conduct is a statement under the hearsay rules if the nonverbal conduct was intended as an assertion.
A declarant's out-of-court statement is not hearsay if the declarant testifies at trial and is subject to cross-examination concerning the statement, and the statement is consistent with the declarant's testimony and is offered to rebut an express or implied charge against the declarant of recent fabrication or improper influence or motive.

State v. Emery 2008 ND 3
Docket No.: 20070147
Filing Date: 1/17/2008
Case Type: Appeal - Criminal - DUI/DUS/APC
Author: VandeWalle, Gerald

Highlight: Ordering the surrender of license plates does not fit the maximum penalty for a first DUI offense.
A DUI conviction cannot be used to enhance the penalty of a subsequent DUI conviction when there is no proof that the defendant waived his right to counsel before pleading guilty to the earlier DUI charge.

State v. Odom (Cross-Ref w/20060106) 2008 ND 2
Docket No.: 20070187
Filing Date: 1/17/2008
Case Type: Appeal - Criminal - Drugs/Contraband
Author:

Highlight: A district court drug-offenses criminal judgment is summarily affirmed under N.D.R.App.P. 35.1(a)(3) and (7).