                Filed 7/22/20 by Clerk of Supreme Court

                 IN THE SUPREME COURT
                 STATE OF NORTH DAKOTA

                                2020 ND 154

City of Jamestown,                                     Plaintiff and Appellee
     v.
Carlin Dean Schultz,                               Defendant and Appellant

                               No. 20190359

Appeal from the District Court of Stutsman County, Southeast Judicial
District, the Honorable Cherie L. Clark, Judge.

AFFIRMED.

Opinion of the Court by Jensen, Chief Justice, in which Justices VandeWalle,
Crothers, and McEvers joined. Justice Tufte filed a specially concurring
opinion, in which Chief Justice Jensen joined. Justice McEvers filed a
concurring opinion, in which Justice VandeWalle joined.

Abbagail C. Geroux, Assistant City Attorney, Jamestown, ND, for plaintiff and
appellee.

Chad R. McCabe, Bismarck, ND, for defendant and appellant.
                       City of Jamestown v. Schultz
                                No. 20190359

Jensen, Chief Justice.

[¶1] Carlin Schultz appeals from a criminal judgment entered following his
conditional guilty plea to the charge of driving under the influence. Schultz
entered a conditional guilty plea preserving his right to challenge the denial
of his motion to suppress evidence. Schultz argues he did not receive a
reasonable opportunity to consult with counsel before deciding to take a
chemical test and the subsequent test results should be excluded from
evidence. We affirm.

                                       I

[¶2] Schultz was arrested for driving under the influence and transported to
the law enforcement center. The arresting officer read Schultz the implied
consent advisory. Schultz acknowledged that he understood the request and
asked to first speak to his attorney before agreeing to take the test. Schultz
was permitted to call an attorney and they spoke for about a minute before
Schultz agreed to take the test. The officer tried to administer the test on the
Intoxilyzer 8000, discovered his credentials were invalid, and he could not
administer the test.

[¶3] The officer had the option to administer the test on another machine or
have another officer administer the test on the original machine. The officer
explained the situation to Schultz. Schultz indicated he did not understand the
situation and asked the officer for advice as to whether he should call his
attorney again. The officer testified Schultz did not make a specific request to
initiate a second call to an attorney while Schultz contends he specifically
asked to make a second call to his attorney. Another officer subsequently
administered the test on the original machine without Schultz having a second
opportunity to speak to an attorney.




                                       1
[¶4] Schultz moved to suppress the chemical test result arguing, in part, he
was denied his statutory right to a reasonable opportunity to consult with
counsel in a meaningful way before deciding whether to submit to chemical
testing. The district court concluded that Schultz was provided a reasonable
opportunity to consult an attorney prior to deciding whether to submit to a
chemical test. The court found Schultz made an affirmative request for an
attorney prior to deciding to submit to the chemical breath test, and that the
arresting officer provided Schultz a reasonable opportunity to consult with his
attorney. The court further found the second request to be ambiguous, but
found that regardless of whether the second request had been made or not
made, Schultz had already been given a reasonable opportunity to speak with
an attorney.

[¶5] Following the denial of his motion to suppress, Schultz entered a
conditional guilty plea to the charge of driving under the influence of
intoxicating liquor, a class B misdemeanor, in violation of Jamestown
Municipal Ordinance § 21-04-06. Schultz’s conditional plea of guilty preserved
for appeal the issue of whether or not the denial of his second request to consult
with an attorney deprived him of his statutory right to counsel.

                                       II

[¶6] The initial articulation of a driver’s limited statutory right to counsel
before deciding to submit to a chemical test occurred in this Court’s decision in
Kuntz v. State Highway Comm’r, 405 N.W.2d 285 (N.D. 1987). The State
argues Schultz had been provided with a reasonable opportunity to consult
with counsel in a meaningful way and, if there was a second request made by
Schultz to consult with counsel, the right to counsel established in Kuntz had
been satisfied.

[¶7] This Court’s precedent defining the limited right to attorney established
by our decision in Kuntz is well-established:




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      An arrested person who asks to speak with an attorney before
      taking a chemical test must be given a reasonable opportunity to
      do so if it does not materially interfere with the test
      administration. Kuntz v. State Highway Comm’r, 405 N.W.2d 285,
      290 (N.D. 1987). The reasonableness of the opportunity objectively
      depends on the totality of the circumstances, rather than the
      subjective beliefs of the accused or police. City of Mandan v.
      Jewett, 517 N.W.2d 640, 642 (N.D. 1994). The accused person’s
      right of consultation with an attorney before submitting to a
      chemical test is a statutory right, not a constitutional
      right. Kuntz[,] at 289; see also N.D.C.C. § 29-05-20 (providing that
      an attorney who requests to visit with the arrested person may
      have such visitation). This limited right of consultation must be
      balanced against the need for an accurate and timely chemical
      test. State v. Sadek, 552 N.W.2d 71, 73 (N.D. 1996).

State v. Ruden, 2017 ND 185, ¶ 14, 900 N.W.2d 58 (quoting Schank, 2017 ND
81, ¶ 7, 892 N.W.2d 593). “The appropriate inquiry is whether the police
afforded [an arrestee] a reasonable opportunity to consult with counsel in a
meaningful way.” Id. “This Court also has held that when an arrestee’s
statutory right to consult with counsel before submitting to a chemical test has
been infringed or denied, the appropriate remedy in a criminal case is
suppression of the chemical test results.” State v. Lee, 2012 ND 97, ¶ 11, 816
N.W.2d 782 (citing In re R.P., 2008 ND 39, ¶ 11, 745 N.W.2d 642).

[¶8] The district court concluded that Schultz was provided a reasonable
opportunity to consult an attorney prior to deciding whether to submit to a
chemical test and Schultz had no right to a second opportunity. “Determining
whether a person was given a reasonable opportunity to speak with an
attorney is a mixed question of law and fact that is subject to a de novo
standard of review.” City of Gwinner v. Vincent, 2017 ND 82, ¶ 10, 892 N.W.2d
598 (citing Lies v. Dir., N.D. DOT, 2008 ND 30, ¶ 9, 744 N.W.2d 783). “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.” Id.




                                       3
[¶9] Schultz was provided with an opportunity to consult with an attorney.
After consulting with an attorney, Schultz made a decision to take the chemical
test. In Kuntz, a majority of this Court recognized “that if an arrested person
asks to consult with an attorney before deciding to take a chemical test, he
must be given a reasonable opportunity to do so if it does not materially
interfere with the administration of the test.” Kuntz, 405 N.W.2d at 290.
Schultz consulted with an attorney, made a decision regarding the requested
testing, and his limited right to consult with an attorney prior to taking the
test as established in Kuntz had been satisfied.

                                     III

[¶10] Schultz was provided with an opportunity to consult with an attorney
before he decided whether to submit to chemical testing. Schultz was not
required to be provided with a second chance to consult with an attorney
subsequent to making a decision to take the chemical test. The judgment of
the district court is affirmed.

[¶11] Jon J. Jensen, C.J.
      Daniel J. Crothers
      Lisa Fair McEvers
      Gerald W. VandeWalle


Tufte, Justice, concurring specially.

[¶12] Once again, the Court is asked to expand on the “statutory right” of a
person arrested for DUI to call an attorney before taking a chemical test that
a majority of this Court first described in Kuntz v. State Highway Comm’r, 405
N.W.2d 285, 287 (N.D. 1987). The Court has properly rejected that request,
and I concur in the result.

[¶13] I write separately because I maintain that this “statutory right,” a
strained but possible interpretation of N.D.C.C. § 29-05-20 when Kuntz was
decided, cannot be reconciled with the statute as it is now codified. Jesser v.
N.D. Dep’t of Transp., 2019 ND 287, ¶¶ 19-22, 936 N.W.2d 102 (Tufte, J.,
concurring specially). This Court appropriately gives significant weight under


                                      4
principles of stare decisis to its previous decisions interpreting statutes. When
the statute has changed in material respects, however, the Court is required
to apply the amended law as written. The Court’s interpretation of the previous
statute may provide little or no guidance. Whether or not the parties and the
district court have identified all applicable law, we retain authority to identify
and apply the correct law. See D.G.L. Trading Corp. v. Reis, 2007 ND 88, ¶ 7,
732 N.W.2d 393. As presently codified, section 29-05-20, N.D.C.C., plainly
grants an “attorney at law,” “at the attorney’s request,” the right to “visit such
person [the “accused”] after that person’s arrest.” If the accused has a right to
call an attorney when deciding whether to take a chemical test, it is nowhere
to be found in section 29-05-20, N.D.C.C. Here, we do not know with certainty
who changed this section or under what authority it was changed, but we do
have a statutory presumption that “[t]he law as published must be presumed
valid until determined otherwise by an appropriate court.” N.D.C.C. § 1-02-
06.1. I have previously explained why the pronouns that have been changed
are material because the result in Kuntz turned on the interpretation of those
pronouns. Jesser, 2019 ND 287, ¶¶ 20-21, 936 N.W.2d 102 (Tufte, J.,
concurring specially). They are only immaterial if they are not in fact valid law.
In this case, the City did not question whether the statute as now codified
provides a “statutory right” to counsel prior to submitting to testing, and the
majority opinion properly refrains from addressing an issue not raised by the
parties.

[¶14] I acknowledge that if time and other circumstances permit, an officer
may allow a driver to consult with an attorney one or more times in the interest
of obtaining informed consent to a chemical test. But I would conclude that
Schultz had no right to call an attorney a second time because, properly
interpreted, both the first and second calls were a matter of officer discretion
and not of statutory right under N.D.C.C. § 29-05-20.

[¶15] Jerod E. Tufte
      Jon J. Jensen, C.J.




                                        5
McEvers, Justice, concurring.

[¶16] I agree with and have signed with the majority. I write separately to
address Justice Tufte’s special concurrence. Justice Tufte is correct the
language of N.D.C.C. § 29-05-20 has changed since this Court’s interpretation
in Kuntz v. State Highway Comm’r, 405 N.W.2d 285 (N.D. 1987). Justice Tufte
suggests the changes have been made to remove ambiguity. Jesser v. N.D.
Dep’t of Transp., 2019 ND 287, ¶ 21, 936 N.W.2d 102 (Tufte, Justice, concurring
specially). Justice Tufte notes:

      We do not lightly revisit settled issues of statutory interpretation
      because the Legislative Assembly has ample opportunity to correct
      our work if it does not comport with its intended meaning. Here, it
      appears the Legislative Assembly may have tried to correct our
      work, but without effect.

Id. at ¶ 22 (citation omitted). I respectfully disagree we should assume any
intent by the legislature to “remove ambiguity,” or “correct our work,” because
there is no record the Legislative Assembly had a role in the change to the
statute.

[¶17] In 2003, N.D.C.C. § 29-05-20 read as follows: “The accused in all cases
must be taken before a magistrate without unnecessary delay, and any
attorney at law entitled to practice in the courts of record of this state, at his
request, may visit such person after his arrest.” (Emphasis added.) In 2005,
N.D.C.C. § 29-05-20 was revised to read: “The accused in all cases must be
taken before a magistrate without unnecessary delay, and any attorney at law
entitled to practice in the courts of record of this state, at the attorney’s request,
may visit such person after that person’s arrest.” (Emphasis added.)

[¶18] If the Legislative Assembly had intended to correct this Court’s
interpretation of N.D.C.C. § 29-05-20 it would have done so in the form of a bill
to amend and reenact the statute. Even when a statute is amended for a
technical correction, this type of change is generally made as sections of law
are amended for other purposes. See H.B. 1045, 56th N.D. Legis. Sess. (1999),
stating:



                                          6
      Section 29-12-05 of the North Dakota Century Code is amended
      and reenacted as follows:

      29-12-05. Bench warrant, misdemeanor, infraction, or bailable
      felony. If an offense is a misdemeanor, an infraction, or a bailable
      felony, the bench warrant issued must be in a form similar to form
      10 12 as contained in the appendix to the North Dakota Rules of
      Criminal Procedure, but must add to the body thereof a direction
      to the following effect, “or if he the person requires it, that you take
      him the person before any magistrate of that county or in the
      county in which you arrest him the person, that he the person may
      give bail to answer the information (or indictment)”.

[¶19] There is no explanation from the Legislative Assembly why the statute
was revised. Presumably it was changed by the Code Revisor. See N.D.C.C. §
46-03-10 (allowing legislative council to “make such corrections in
orthography, grammatical construction, and punctuation of the same as in its
judgment are proper”). However, the Code Revisor is not authorized to change
the meaning of the law.

[¶20] I agree with Justice Tufte this Court should give significant weight
under the principle of stare decisis to its previous decisions interpreting
statutes. Tufte, Justice, concurring specially at ¶ 13. However, I cannot agree
the changes to the statute are material, when we have no idea why the statute
was revised. This Court has consistently applied the holding in Kuntz since
the statute was revised in 2005, with no action by the Legislative Assembly.
Neutman v. N.D. Dep’t, 2019 ND 288, 935 N.W.2d 788; Jesser v. N.D. Dep’t of
Transp., 2019 ND 287, 936 N.W.2d 102; City of Bismarck v. King, 2019 ND 74,
924 N.W.2d 137; State v. Von Ruden, 2017 ND 185, 900 N.W.2d 58; City of
Dickinson v. Schank, 2017 ND 81, 892 N.W.2d 593; Koehly v. Levi, 2016 ND
202, 886 N.W.2d 689; Cudmore v. N.D. Dep’t of Transp., 2016 ND 64, 877
N.W.2d 52; State v. Keller, 2016 ND 63, 876 N.W.2d 724; Washburn v. Levi,
2015 ND 299, 872 N.W.2d 605; Schlittenhart v. N.D. Dep’t of Transp., 2015 ND
179, 865 N.W.2d 825; Herrman v. N.D. Dep’t of Transp., 2014 ND 129, 847
N.W.2d 768; Gardner v. N.D. Dep’t of Transp., 2012 ND 223, 822 N.W.2d 55;
Bell v. N.D. Dep’t of Transp., 2012 ND 102, 816 N.W.2d 786; Kasowski v. N.D.
Dep’t of Transp., 2011 ND 92, 797 N.W.2d 40; Interest of R.P., 2008 ND 39, 745

                                         7
N.W.2d 642; Lies v. N.D. Dep’t of Transp., 2008 ND 30, 744 N.W.2d 783; State
v. Pace, 2006 ND 98, 713 N.W.2d 535; Eriksmoen v. N.D. Dep’t of Transp., 2005
ND 206, 706 N.W.2d 610.

[¶21] As this Court noted in Olson v. Job Serv. N.D., 2013 ND 24, ¶ 50, 827
N.W.2d 36 (Sandstrom, Justice, dissenting):

     The legislature is presumed to know how the courts have
     interpreted a statute. See Lamb v. State Bd. of Law Examiners,
     2010 ND 11, ¶ 10, 777 N.W.2d 343 (“‘Where courts of this State
     have construed [a] statute and such construction is supported by
     the long acquiescence on the part of the legislative assembly and
     by the failure of the assembly to amend the law, it will be
     presumed that such interpretation of the statute is in accordance
     with legislative intent.’”) (quoting City of Bismarck v. Uhden, 513
     N.W.2d 373, 376 (N.D. 1994)).

[¶22] The Legislative Assembly has had over thirty years to “remove
ambiguity or correct” this Court’s interpretation of N.D.C.C. § 29-05-20 in
Kuntz if they disagreed, and another fifteen years since the statute was
mysteriously revised. Its silence speaks volumes.

[¶23] Lisa Fair McEvers
      Gerald W. VandeWalle




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