Opinions

Bienek v. Department of Transportation 2007 ND 117
Docket No.: 20070032
Filing Date: 7/25/2007
Case Type: Appeal - Administrative - Department of Transportation
Author: Maring, Mary

Highlight: Appellate review of administrative license suspensions is limited to the record before the agency.
On legal questions, such as an interpretation of a statute, an agency's decision is fully reviewable on appeal.
When a general statutory provision is in conflict with a special provision in the same or in another statute, the two must be construed, if possible, so that effect may be given to both provisions. If the conflict between the provisions is irreconcilable, the special provision prevails and is construed as an exception to the general provision unless the general provision is enacted later and it is the manifest legislative intent that such general provision shall prevail.
The Administrative Agencies Practice Act requires alleged errors from the administrative level be specifically enumerated for the district court.

State v. Hahne 2007 ND 116
Docket No.: 20070013
Filing Date: 7/25/2007
Case Type: Appeal - Criminal - DUI/DUS/APC
Author: Sandstrom, Dale

Highlight: A Fourth Amendment "seizure" occurs when a vehicle is stopped by police at a checkpoint. The basic question is whether the seizure is reasonable. If the seizure is reasonable, then it is constitutional.
Temporary law enforcement checkpoints or roadblocks established for particular public purposes are, in general, constitutional.
A court applies a three-part test to analyze the reasonableness of a law enforcement checkpoint: (1) a weighing of the gravity of the public concerns served by the seizure; (2) the degree to which the seizure advances the public interest; and (3) the severity of the interference with individual liberty.
Law enforcement checkpoints need not, as a matter of law, provide motorists with a way to avoid them. When considering the constitutional reasonableness of a checkpoint, avoidability is one factor that may be considered in evaluating the intrusion on the personal liberty of individual motorists.

Interest of B.B. (Confidential) 2007 ND 115
Docket No.: 20060322
Filing Date: 7/25/2007
Case Type: Appeal - Civil - Juvenile Law
Author: Kapsner, Carol

Highlight: To satisfy the business records exception to the hearsay rule, each participant in the creation of the record must be acting in the course of regularly conducted business.
The Sixth Amendment right to confront and cross-examine witnesses does not apply to civil proceedings.
A party in a deprivation proceeding in juvenile court is entitled to the opportunity to cross-examine adverse witnesses.
A juvenile court's finding of deprivation will not be set aside on appeal unless clearly erroneous.

State v. Holbach 2007 ND 114
Docket No.: 20060297
Filing Date: 7/25/2007
Case Type: Appeal - Criminal - Misc. Misdemeanor
Author: Kapsner, Carol

Highlight: A specific on-the-record colloquy is not necessary to establish the validity of a defendant's waiver of the right to counsel if the record establishes the defendant voluntarily, knowingly, and intelligently waived the right to counsel.

State v. Edwards 2007 ND 113
Docket No.: 20060254
Filing Date: 7/25/2007
Case Type: Appeal - Criminal - Misc. Felony
Author: VandeWalle, Gerald

Highlight: A sentencing court may correct an illegal sentence at any time.

Roth v. State (Cross-Ref. w/20050227) 2007 ND 112
Docket No.: 20060241
Filing Date: 7/25/2007
Case Type: Appeal - Civil - Post-Conviction Relief
Author: VandeWalle, Gerald

Highlight: To prove an ineffective assistance claim based on counsel's failure to move to suppress evidence, the petitioner must show that he would have prevailed on the suppression motion and that there is a reasonable probability the successful motion would have affected the outcome.
The "reasonable cause" standard contained in N.D.R.Crim.P. 41(c)(1)(E) focuses on the necessity for executing the search warrant in the nighttime rather than in the daytime.
A nighttime searches may be upheld when there is particularized evidence of drug trafficking, sales, or manufacture which occurred late at night or in the early morning hours.

Interest of J.C. (Confidential) 2007 ND 111
Docket No.: 20060341
Filing Date: 7/25/2007
Case Type: Appeal - Juvenile - Termination of Parental Rights
Author: Kapsner, Carol

Highlight: In a proceeding to terminate parental rights, a juvenile court's decision to grant or deny a continuance is addressed to the court's discretion.
A juvenile court may not declare a parent in default and terminate parental rights without some evidentiary basis in the record to support the termination.

Weigel v. Weigel 2007 ND 110
Docket No.: 20070003
Filing Date: 7/25/2007
Case Type: Appeal - Civil - Divorce - Property
Author: Per Curiam

Highlight: Property division in a divorce judgment is summarily affirmed under N.D.R.App.P. 35.1(a)(1) and (7).

State v. Boyle 2007 ND 109
Docket No.: 20070057
Filing Date: 7/25/2007
Case Type: Appeal - Criminal - Misc. Misdemeanor
Author: Per Curiam

Highlight: A conviction for operating a motor vehicle without liability insurance is summarily affirmed under N.D.R.App.P. 35.1(a)(3).

State v. Friedt 2007 ND 108
Docket No.: 20060276
Filing Date: 7/5/2007
Case Type: Appeal - Criminal - DUI/DUS/APC
Author: Maring, Mary

Highlight: On appeal, a constitutional question will not be decided if the dispute can be resolved on other grounds.
A trial court's admission or exclusion of evidence will not be overturned on appeal unless the trial court has abused its discretion.
An adequate foundation may be established by testimony that identifies the evidence and establishes the competency, materiality, and relevancy of the evidence.