High court hears dispute over whether driver was denied counsel before chemical test

The state Supreme Court heard arguments in the appeal of an administrative determination that revoked a commercial driver’s privileges for 180 days after law enforcement concluded he refused a chemical breath test.

Appellant counsel Marcus Powell told the court the driver requested to speak to “both the supervisor and a lawyer” while detained in the rear of a patrol vehicle but was not given a reasonable opportunity to consult counsel before officers drove to a testing site more than an hour away. Powell argued officers left the driver isolated in the patrol vehicle while they inspected the commercial motor vehicle and that the officers acknowledged the two-hour statutory window for an administratively approved chemical test but nonetheless delayed travel to Dickinson, putting any approved test beyond the statutory timeframe.

In response, Department of Transportation counsel Mr. Pitcher urged the court to affirm the Golden Valley District Court and the hearing officer’s decision. Pitcher said officers repeatedly interpreted the driver’s comments as a refusal to submit to a breath test and that the first clear mention of counsel on the video record occurred well after the exchange in which the officer had concluded the driver was refusing. Pitcher described the officer’s recorded interpretation: “I’m considering your responses to be a refusal,” and argued that, under the department’s reading, there was an affirmative refusal before the later reference to counsel.

Both sides framed the dispute around two related legal questions: whether the driver made an affirmative refusal to the requested chemical test and whether the driver was denied a statutory right to consult an attorney “before deciding whether to submit to a chemical test,” as the court’s statutory provision requires. The Department relied on administrative-case precedent that treats certain nonanswers or statements such as “I don’t answer any more questions” or “not this test” as an affirmative refusal. The appellant urged that a request to speak to counsel—even if phrased as a general request—put officers on notice they needed to provide a reasonable opportunity to consult before the refusal could be deemed final.

Counsel and the justices also debated practical facts: the record includes a timestamped video showing the stop and subsequent exchanges (counsel cited arrival at about 9:42 a.m. and an exchange that ended around 10:03 a.m.), and defense counsel pointed to evidence that an intoxilyzer machine was minutes away at the sheriff’s office in Golden Valley. The Department countered that the jail and the cooperating facility the troopers intended to use were in Dickinson and that the record did not establish a timely, articulated request to "cure" a refusal by taking an approved test within two hours.

At oral argument the bench probed whether a driver must use particular words to request counsel or whether any clear request suffices, and whether officers should or must inform a detained driver that a two-hour administrative window had expired when a late request is made. Counsel disagreed about whether the late request, and the officers’ decisions about where to take the driver, rendered the administrative refusal unreasonable under controlling precedent.

The court took the case under advisement. No decision was announced at argument; the court recessed until 1:30 p.m.