Opinions

State v. Tupa (Consolidated w/20040132) 2005 ND 25
Docket No.: 20040106
Filing Date: 1/24/2005
Case Type: Appeal - Criminal - Misc. Misdemeanor
Author: VandeWalle, Gerald

Highlight: A criminal restitution award can be based on replacement costs where, for example, a victim must replace an item not readily or desirably found in a secondary market.
Fair market value or cost to repair are appropriate measures of criminal restitution if they make a victim whole, such as where a damaged or destroyed item can be cost-effectively repaired or where a viable and appropriate secondary market exists.
A trial court has wide discretion in setting the amount of restitution, and the trial judge does not abuse this discretion by awarding restitution that is within the range of reasonableness.
North Dakota law does not limit criminal restitution to those amounts that would be recoverable in a corresponding civil tort action.
Restitution payments are based on what a defendant can or will be able to pay, and the trial court does not abuse its discretion, or threaten a victim's reimbursement, by ordering payments that are within the defendant's capabilities, even if the obligation may necessitate a change in the defendant's lifestyle.

City of Grand Forks v. Scialdone 2005 ND 24
Docket No.: 20040119
Filing Date: 1/19/2005
Case Type: Appeal - Criminal - DUI/DUS/APC
Author: Maring, Mary

Highlight: Evidence about calibration checks when an Intoxilyzer has been moved is not a foundational requirement for showing an Intoxilyzer test was administered in accordance with the approved method for conducting the test or for admission of the test result into evidence.
If a defendant rebuts the prosecution's prima facie showing of fair administration of a blood-alcohol test for admission into evidence, the prosecution may present testimony to show fair administration despite defendant's rebuttal.
A judgment will not ordinarily be reversed on appeal for surprise when no request is made for a continuance at the time and there is no showing of inability to meet the situation.

Kiecker v. ND Dept. of Transportation 2005 ND 23
Docket No.: 20040150
Filing Date: 1/19/2005
Case Type: Appeal - Administrative - Department of Transportation
Author: Sandstrom, Dale

Highlight: The results of a blood-alcohol test must be received in evidence when it is shown that the sample was properly obtained and the test was fairy administered, and if the test is shown to have been performed according to methods and with devices approved by the State Toxicologist.
A document is not part of the approved method unless the State Toxicologist expressly includes it in the approved method and makes it a foundational requirement for fair administration.
The installation and repair checkout form is not part of the approved method.

Jones v. ND State Board of Medical Examiners 2005 ND 22
Docket No.: 20040161
Filing Date: 1/19/2005
Case Type: Appeal - Civil - Administrative Proceeding
Author: Sandstrom, Dale

Highlight: A physician has no statutory or due process right to appear personally before the State Board of Medical Examiners when the Board deliberates whether to accept or reject an administrative law judge's recommendations.
The Board's conclusions of law and order must sufficiently explain its rationale for not adopting an administrative law judge's recommended sanction.

State v. Smith (Consolidated w/20040115) 2005 ND 21
Docket No.: 20040114
Filing Date: 1/19/2005
Case Type: Appeal - Criminal - Drugs/Contraband
Author: Sandstrom, Dale

Highlight: The information obtained by a police officer from an anonymous informant cannot alone establish probable cause if the tip provides virtually nothing from which a person might conclude the informant is honest or his information is reliable, or if the information gives absolutely no indication of the basis for identifying the criminal activities.
A police officer needs at least one reasonable and articulable factor to stop a seemingly innocent car.

Boumont v. Boumont 2005 ND 20
Docket No.: 20040213
Filing Date: 1/19/2005
Case Type: Appeal - Civil - Child Support
Author: VandeWalle, Gerald

Highlight: The Child Support Guidelines' equal-physical-custody provision mandates the appropriate formula for calculating child support in cases where a divorce judgment or court order provides each parent with physical custody of their children exactly 50% of the time, regardless of the actual custodial arrangement subsequently exercised by the parties.

Johnson v. State 2005 ND 19
Docket No.: 20040252
Filing Date: 1/19/2005
Case Type: Appeal - Civil - Post-Conviction Relief
Author: VandeWalle, Gerald

Highlight: Under N.D.R.Ct. 3.2(a), an applicant for post-conviction relief has 10 days to respond to a motion for summary disposition made by the State.

State v. Klindtworth 2005 ND 18
Docket No.: 20040223
Filing Date: 1/19/2005
Case Type: Appeal - Criminal - Misc. Misdemeanor
Author: Sandstrom, Dale

Highlight: A victim's alarm or fear is an element of disorderly conduct only if the defendant is charged with those parts of the statute that refer to it.
An objective standard is used to determine whether the person's conduct alarms another individual in a disorderly conduct charge. A court may consider past conduct in determining whether it was reasonable that the victim became alarmed by the defendant's conduct identified in the charge.

Christoffersen v. Giese 2005 ND 17
Docket No.: 20040143
Filing Date: 1/19/2005
Case Type: Appeal - Civil - Child Support
Author: Neumann, William

State v. Igou 2005 ND 16
Docket No.: 20040093
Filing Date: 1/19/2005
Case Type: Appeal - Criminal - Sexual Offense
Author: Maring, Mary

Highlight: When challenging the sufficiency of the evidence to support a criminal conviction, the defendant bears the burden of showing that the evidence, when viewed in the light most favorable to the verdict, reveals no reasonable inference of guilt.
Authority to notice obvious error on appeal is exercised cautiously and only in exceptional circumstances in which the defendant has suffered a serious injustice.