IN THE SUPREME COURT

STATE OF NORTH DAKOTA

2024 ND 37

Lawrence Ryan Weber, Petitioner and Appellant

v.

Ronald Henke, Director of the

North Dakota Department of Transportation, Respondent and Appellee

No. 20230354

Appeal from the District Court of Stark County, Southwest Judicial District, 

the Honorable James D. Gion, Judge.

AFFIRMED.

Opinion of the Court by Crothers, Justice.

Thomas F. Murtha IV, Dickinson, ND, for petitioner and appellant.

Michael T. Pitcher, Bismarck, ND, for respondent and appellee.

FILED 

IN THE OFFICE OF THE 

CLERK OF SUPREME COURT 

MARCH 7, 2024 

STATE OF NORTH DAKOTA
1

Weber v. NDDOT

No. 20230354

Crothers, Justice.

[¶1] Lawrence Weber appeals from a North Dakota Department of 

Transportation hearing officer’s decision to suspend his driving privileges for 

180 days and a district court’s memorandum opinion affirming the hearing 

officer’s decision, order for judgment and judgment dismissing the appeal. 

Weber argues the hearing officer and the district court erred because he was 

not provided with a reasonable opportunity to contact an attorney, which 

denies the North Dakota Department of Transportation authority to revoke his 

driving privileges. The judgment of the district court is affirmed.

I

[¶2] The relevant facts in this case are undisputed. On February 26, 2023, 

police stopped a vehicle driven by Weber. Weber took an onsite screening test, 

resulting in a reading of .152 percent blood alcohol content. Police arrested 

Weber for driving under the influence. The Department hearing officer made 

the following findings regarding the issue on appeal, which Weber does not 

challenge:

“Officer Pickstock placed Mr. Weber under arrest for driving while 

under the influence. Officer Pickstock read the Miranda warnings 

and then the implied consent advisory for a chemical test. Mr. 

Weber responds, ‘take the test again?’ [w]hen Officer Pickstock 

asks for a chemical test. Officer Pickstock clarifies that he is 

seeking a chemical breath test. Mr. Weber responds that he is 

using his fifth amendment from this point on. He also stated that 

he was not going to answer any more questions. After transport to 

the LEC, Mr. Weber states twice that he will take the test, but as 

Officer Pickstock does not hear him say he will take the test 

because Mr. Weber will not respond in a yes or no format, Mr. 

Weber requests an attorney multiple times. Officer Pickstock 

transports Mr. Weber inside to an interview room and makes so 

Mr. Weber can access his phone. Officer Pickstock tells Mr. Weber 

he can make calls to his attorney and moves back to the doorway 
2

to give him space. Mr. Weber makes one phone call, asking the 

individual called if they will ‘call Gary’[.] The individual responds 

that Gary is not going to do anything, so they are not going to call. 

They further tell Mr. Weber to remain silent. Once the call ends 

Mr. Weber tosses his phone away from him on to the table and sits 

back in the chair, he was sitting in. Officer Pickstock then requests 

a chemical test again. Mr. Weber responds ‘I am not saying shit. I 

already took your one test.’ When Officer Pickstock attempts to 

clarify if he is refusing Mr. Weber responds ‘I am giving you a zero 

answer. I gave you one test already, so that’s the test you got.’ Mr. 

Weber makes two additional references to an attorney, stating that 

he is waiting for his attorney now because he had already been 

placed under arrest. Mr. Weber did not reach for his phone to make 

additional calls or ask for additional time to make additional calls 

to his attorney. Mr. Weber did not attempt to make a call to an 

attorney, did not ask for additional information regarding 

attorneys nor did he ask for additional time to call an attorney 

after making a phone call. For the rest of the interaction every time 

Officer Pickstock mentions that he is considering the test refused 

Mr. Weber responds ‘I am not refusing to take a test, I am using 

my fifth amendment rights because you already placed me under 

arrest’ or very similar statements. Mr. Weber does not agree to take 

a test, does not refuse to take the test and does not request to take 

a test when he is informed that Officer Pickstock considers his 

response a refusal.”

[¶3] The hearing officer found Weber refused to take a chemical breath test. 

The hearing officer found Weber had a reasonable opportunity to call an 

attorney, but instead called an individual to call his attorney. The hearing 

officer suspended Weber’s driving privileges for 180 days. Weber appealed to 

the district court, which affirmed the hearing officer’s findings and decision. 

Weber timely appealed. 

II

[¶4] Weber argues the hearing officer and the district court erred because he 

was not provided with a reasonable opportunity to contact an attorney, denying

the Department’s authority to revoke his driving privileges.
3

[¶5] This Court must affirm an agency’s decision unless:

“1. The order is not in accordance with the law.

2. The order is in violation of the constitutional rights of the 

appellant.

3. The provisions of this chapter have not been complied with in 

the proceedings before the agency.

4. The rules or procedure of the agency have not afforded the 

appellant a fair hearing.

5. The findings of fact made by the agency are not supported by a 

preponderance of the evidence.

6. The conclusions of law and order of the agency are not supported 

by its findings of fact.

7. The findings of fact made by the agency do not sufficiently 

address the evidence presented to the agency by the appellant.

8. The conclusions of law and order of the agency do not sufficiently 

explain the agency’s rationale for not adopting any contrary 

recommendations by a hearing officer or an administrative law 

judge.”

N.D.C.C. § 28-32-46.

[¶6] When this Court reviews an agency’s factual findings: “Great deference 

is afforded to the agency’s factual determinations.” LeClair v. Sorel, 2018 ND 

255, ¶ 6, 920 N.W.2d 306. “We determine only whether a reasoning mind 

reasonably could have determined that the factual conclusions reached were 

proved by the weight of the evidence from the entire record.” Id. “The question 

of whether a person has been afforded a reasonable opportunity to speak with 

a lawyer is a mixed question of law and fact.” Maisey v. North Dakota Dep’t of 

Transp., 2009 ND 191, ¶ 14, 775 N.W.2d 200. “This Court determines whether 

a person has been afforded a reasonable opportunity to speak with a lawyer by 

conducting an objective review of the totality of the circumstances.” Id.

[¶7] This Court has interpreted North Dakota law as recognizing that a motor 

vehicle operator arrested for driving under the influence or being in actual 

physical control has a limited statutory right to consult with counsel. N.D.C.C. 

§ 29-05-20 (“The accused in all cases must be taken before a magistrate without 
4

unnecessary delay, and any attorney at law entitled to practice in the courts of 

record of this state, at the request of the attorney or the accused, may visit the 

accused after the accused's arrest.”); City of Jamestown v. Schultz, 2020 ND 

154, ¶ 7, 946 N.W.2d 740 (applying the predecessor statute to provide a right 

to consult with counsel). After he was arrested, Weber stated he wanted to talk 

with his attorney. The officer allowed Weber to use his phone to call his 

attorney. Weber called an individual identified in the hearing transcript as his 

mother. Weber’s mother told him that the attorney would not be able to help 

him and that she will not call the attorney. Weber tossed his phone aside and 

did not attempt to call anyone else. From this the hearing officer concluded, 

“Mr. Weber was given a reasonable opportunity to call an attorney.”

[¶8] Weber argues his situation is like Baillie because he alleges the officer 

did not allow him a reasonable opportunity to contact an attorney. In Baillie v. 

Moore, a driver told an officer he would not submit to a chemical test without 

consulting an attorney, which the officer considered as a refusal to take the 

test. 522 N.W.2d 748, 749 (N.D. 1994). This Court held the driver’s rights were 

violated because his request to contact an attorney was interpreted to be a 

refusal to take the chemical breath test. Id. at 750-51. 

[¶9] The Department argues the facts in this case are more like Maisey,

where a driver requested to speak to a specific attorney and called his wife for 

the attorney’s phone number, but she was unable to obtain the attorney’s phone 

number. 2009 ND 191, ¶ 15. The police chief gave the driver the attorney’s 

number, whom the driver called and left a message. Id. The attorney did not 

call back and the driver refused testing while waiting for the call that never 

came. Id. This Court held the driver’s right to counsel was satisfied because he

had a reasonable opportunity to consult an attorney when law enforcement 

provided the attorney’s phone number and a message was left. Id. at ¶ 18; see 

also Ehrlich v. Backes, 477 N.W.2d 211, 212, 214 (N.D. 1991) (right to contact 

lawyer satisfied when driver was provided with a telephone and city directory). 

[¶10] We agree with the Department that the present facts are more similar 

to Maisey than Baillie. The officer allowed Weber to use his phone to call an 
5

attorney, where in Baillie the officer did not allow the driver to call an attorney. 

522 N.W.2d at 749. Like in Maisey, Weber was provided a reasonable 

opportunity but mishandled it by relying on his mother to call his attorney.

After she refused to help him, he made no further efforts to contact an attorney.

On these facts, a reasoning mind could reasonably find Weber attempted to 

contact a specific attorney, was unable to contact him, and effectively gave up 

the search for an attorney. The hearing officer also could reasonably conclude 

Weber was not denied his limited statutory right to counsel.

III

[¶11] The hearing officer’s findings are supported by a preponderance of the 

evidence, and her conclusion Weber was not deprived of his right to consult 

counsel was in accordance with the law. The judgment of the district court is 

affirmed.

[¶12] Jon J. Jensen, C.J.

Daniel J. Crothers

Lisa Fair McEvers

Jerod E. Tufte

Douglas A. Bahr