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 Coun ty, Southeast Judicial District, the Honorable Ch erie L. Clark, Judge.

AFFIRMED.
Opinion of the Court by Jensen, Chief Justice, in which Ju stices VandeWalle, Crothers, and McEvers joined. Justice Tufte filed a specially concurring opinion, in which Chief Justice Jens en joined. Justice McEvers filed a concurring opinion, in which Justice VandeWalle joined.
Abbagail C. Geroux, Assistant City Atto rney, Jamestown, ND, for plaintiff and appellee.
Chad R. McCabe, Bismarck, ND, for defendant and appellant.1 City of Jamestown v. Schultz No. 20190359
Jensen, Chief Justice.
[¶1] Carlin Schultz appeals from a crimi nal judgment entered following his conditional guilty plea to the charge of driving unde r the influence. Schultz entered a conditional guilty plea preser ving his right to challenge the denial of his motion to suppre ss evidence. Schultz argu es he did not receive a reasonable opportunity to consult with counsel before deci ding to take a chemical test and the subsequent test results should be excluded from evidence. We affirm.

I
[¶2] Schultz was arrested for driving unde r the influence and transported to the law enforcement center. The arre sting officer read Sc hultz the implied consent advisory. Schultz acknowledged that he understo od the request and asked to first speak to his attorney before ag reeing to take the test. Schultz was permitted to call an a ttorney and they spoke fo r about a minute before Schultz agreed to take the test. The officer tried to administer the test on the Intoxilyzer 8000, discovered his credenti als were invalid, and he could not administer the test.
[¶3] The officer had the option to admini ster the test on another machine or have another officer administer the test on the original machine. The officer explained the situ ation to Schultz. Schultz indi cated he did not understand the situation and asked the officer for advi ce as to whether he should call his attorney again. The office r testified Schultz did not make a specific request to initiate a second ca ll to an attorney wh ile Schultz contends he specifically asked to make a second call to his attorney. Another o fficer subsequently administered the test on the original ma chine without Schultz having a second opportunity to spea k to an attorney.2 [¶4] Schultz moved to suppress the chemical test result arguing, in part, he was denied his statutory ri ght to a reasonable oppo rtunity to consult with counsel in a meaningful way before deci ding whether to su bmit to chemical testing. The district court concluded th at 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 a ffirmative request for an attorney prior to deciding to submit to the chemical breath test, and that the arresting officer provided Sc hultz a reasonable opportunity to consult with his attorney. The court furthe r found the second reque st to be ambiguous, but found that regardless of whether the second reque st had been made or not made, Schultz had already been given a reasonable opportuni ty 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 misdem eanor, 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 depr ived him of his statuto ry 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 pr ovided 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 lim ited right to atto rney established by our decision in Kuntz is well-established:3 An arrested person who asks to speak with an a ttorney before taking a chemical test must be gi ven a reasonable opportunity to do so if it does not materi ally 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. 19 94). The accused person’s right of consultation with an a ttorney before su bmitting 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 visi t with the arrested person may have such visitation). This limit ed 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 appr opriate inquiry is whether the police afforded [an arrestee] a re asonable opportunity to co nsult 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 chem ical 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 Sc hultz was provided a reasonable opportunity to consult an attorney prior to deciding whether to submit to a chemical test and Schultz ha d no right to a second o pportunity. “Determining whether a person was given a reason able opportunity to speak with an attorney is a mixed question of law an d fact that is subj ect 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 fo r determining whether a ‘r easonable opportunity’ to consult with an attorney has been afforded; rath er, the determination of whether a reasonable oppo rtunity has been provided turns on an objective review of the totality of the circumstances.” Id.4 [¶9] Schultz was provided with an opport unity to consult wi th an attorney. After consulting with an atto rney, Schultz made a decisi on to take the chemical test. In Kuntz , a majority of this Co urt 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 admini stration 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 cons ult 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 ta king a chemical test that a majority of this Co urt first described in Kuntz v. State Highway Comm’r , 405 N.W.2d 285, 287 (N.D. 1987). The Cour t has properly rejected that request, and I concur in the result.
[¶13] I write separately because I maintain that this “sta tutory right,” a strained but possible in terpretation of N.D.C.C. § 29-05-20 when Kuntz was decided, cannot be reco nciled 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 approp riately gives significant weight under5 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 interp retation of the previous statute may provide little or no guidan ce. Whether or not the parties and the district court have identified all applicable law, we re tain 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 pres ently codified, section 29-05-20, N.D.C.C., plainly grants an “attorney at law,” “at the attorney’s reque st,” 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 presumptio n that “[t]he law as pu blished must be presumed valid until determined otherwise by an appropriate court.” N.D.C.C. § 1-02- 06.1. I have previously ex plained why the pronouns that have been changed are material because the result in Kuntz turned on the inte rpretation of those
pronouns. Jesser , 2019 ND 287, ¶¶ 20-21, 936 N.W.2d 102 (Tufte, J., concurring specially). They are only immate rial 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 pr ior 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 othe r circumstances permit, an officer may allow a driver to consult with an atto rney one or more times in the interest of obtaining informed cons ent to a chemical test. But I would conclude that Schultz had no right to ca ll an attorney a second time because, properly interpreted, both the first and second calls were a ma tter 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.6 McEvers, Justice, concurring.
[¶16] I agree with and have signed with th e majority. I write separately to address Justice Tufte’s special concurre nce. Justice Tufte is correct the language of N.D.C.C. § 29 -05-20 has changed since th is Court’s interpretation in Kuntz v. State Highway Comm’r , 405 N.W.2d 285 (N.D. 1987). Justice Tufte suggests the changes ha ve 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). Justi ce Tufte notes:
We do not lightly revisi t settled issues of sta tutory interpretation because the Legislative Assembly has ample opportunity to correct our work if it does not comport wi th its intended me aning. Here, it appears the Legislative Assembly may have tried to correct our work, but without effect.

Id . at ¶ 22 (citation omitted). I respec tfully disagree we should assume any intent by the legislature to “remove ambiguity,” or “correct our work,” because there is no record the Legislative Asse mbly 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 wi thout 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 re ad: “The accused in all cases must be taken before a magistrate wi thout unnecessary delay, and any attorney at law entitled to practice in the cour ts 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 Asse mbly 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. Ev en 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:7 Section 29-12-05 of the North Da kota Century Code is amended and reenacted as follows:
29-12-05. Bench warrant, misdem eanor, infraction, or bailable felony. If an offense is a misdem eanor, an infraction, or a bailable felony, the bench warrant issued mu st be in a form similar to form 10 12 as contained in the appendix to the North Da kota Rules of Criminal Procedure, but must add to the body ther eof a direction to the following effect, “or if he th e person requires it, that you take him the person before any magistr ate of that county or in the county in which you ar rest him the person, that he the person may give bail to answer the in formation (or indictment)”.
[¶19] There is no explanation from the Legislative A ssembly why the statute was revised. Presumably it was changed by the Code Revisor. See N.D.C.C. § 46-03-10 (allowing legislative counc il to “make such corrections in orthography, grammatical co nstruction, and punctuation of the same as in its judgment are proper”). However, the Code Revisor is not auth orized to change the meaning of the law.
[¶20] I agree with Justice Tufte this Cour t should give si gnificant weight under the principle of stare decisis to its previous de cisions interpreting statutes. Tufte, Ju stice, 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 cons istently 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, 87 2 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, 7458 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] statu te and such constructi on 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 inte rpretation of the statu te 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 ha d over thirty years to “remove ambiguity or correct” this Court’s interp retation 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