Clarifying “Reasonable Opportunity” to Consult Counsel Before Chemical Testing in DUI Arrests

Introduction

The Supreme Court of North Dakota’s decision in Skobodzinski v. NDDOT, 2025 ND 84, addresses two central questions under North Dakota’s implied-consent and post-arrest statutes: (1) whether the hearing officer correctly found that Artur Skobodzinski “refused” a requested chemical breath test, and (2) whether Skobodzinski was afforded a “reasonable opportunity” to consult an attorney under N.D.C.C. § 29-05-20 before deciding whether to submit to chemical testing. On March 18, 2024, Trooper Loeffel arrested Skobodzinski at a commercial weigh station in Beach, North Dakota, after detecting signs of intoxication. At an administrative hearing, the hearing officer revoked Skobodzinski’s driving privileges for 180 days. The District Court affirmed, and Skobodzinski appealed to the Supreme Court, which reversed solely on the ground that he was not given a timely chance to speak with counsel.

Summary of the Judgment

Justice Bahr, writing for a majority joined by Justices Crothers and McEvers, held:

The hearing officer correctly found, by a preponderance of the evidence, that Skobodzinski refused the chemical breath test after being offered and reminded of his right to change his mind.
By contrast, the court concluded the Department hearing officer erred in determining that Skobodzinski was given a reasonable opportunity to consult an attorney before taking the test. Over one hour passed—from Skobodzinski’s unambiguous request for counsel at 10:58 a.m. until 12:05 p.m., when he arrived at the Dickinson law enforcement center—without a valid operational need for delay, and while an Intoxilyzer was “minutes away.” Under the totality of the circumstances, that delay was not “reasonable.”
The District Court’s order and the hearing officer’s decision revoking the license were reversed.

Chief Justice Jensen, joined by Justice Tufte, concurred, emphasizing that none of the parties challenged the underlying precedents establishing a limited statutory right to consult counsel under N.D.C.C. § 29-05-20.

Analysis

Precedents Cited

The court relied on a line of North Dakota authority interpreting refusal under the implied-consent statutes (Chapter 39-20) and the limited post-arrest right to counsel (§ 29-05-20):

Mayo v. Moore, 527 N.W.2d 257 (N.D. 1995) and Gardner v. N.D. Dep’t of Transp., 2012 ND 223: clarified that a negative or evasive answer constitutes a “refusal” and that ambivalence cannot defeat a lawful test request.
Jorgenson v. N.D. Dep’t of Transp., 498 N.W.2d 167 (N.D. 1993) and Geiger v. Hjelle, 396 N.W.2d 302 (N.D. 1986): held that purposeful provision of inadequate samples equals refusal.
Maisey v. N.D. Dep’t of Transp., 2009 ND 191: explained that ambiguous responses cannot be used to avoid penalties of refusal.
Kuntz v. State Highway Comm’r, 405 N.W.2d 285 (N.D. 1987): first recognized a limited statutory right to consult counsel “if it does not materially interfere” with test administration.
Baillie v. Moore, 522 N.W.2d 748 (N.D. 1994) and Washburn v. Levi, 2015 ND 299: articulated a “bright-line” principle that any request for counsel before testing triggers a right to a reasonable opportunity to consult an attorney.
Wetzel v. N.D. Dep’t of Transp., 2001 ND 35: considered totality of circumstances in determining whether a 25-minute opportunity in a patrol car was reasonable.
Administrative review cases (Hoover, Houn, Lindstrom, Schlittenhart): explained standards of deference to fact findings and de novo legal review.

Legal Reasoning

The Court applied two distinct legal frameworks:

Refusal to Submit to Chemical Test: Under N.D.C.C. § 39-20-01(1), a refusal may be an unambiguous negative answer or physical non-cooperation. The court defers to the hearing officer’s fact findings, concluding a reasonable mind could find Skobodzinski’s “no,” his “Fifth Amendment” invocation, and his outright refusal of breath testing constituted a refusal.
Reasonable Opportunity to Consult Counsel: N.D.C.C. § 29-05-20 and Kuntz establish a qualified right to counsel if it does not materially hamper testing. Whether that opportunity is “reasonable” is a mixed question of fact and law, reviewed under the totality of the circumstances. Key factors include:
- Timing and clarity of the request for counsel;
- Whether an attorney call would materially delay or burden the arresting officers;
- Availability of communication facilities (phones, Intoxilyzer locations);
- Remaining time to complete an accurate chemical test within the two-hour window;
- Whether additional delay hampered the driver’s ability to “cure” a refusal by subsequently consenting to testing.
Here, over one hour elapsed after Skobodzinski’s clear request for an attorney, despite a nearby Intoxilyzer and no demonstrated operational necessity to defer the call. Even if the right to cure is separate, the delay in allowing counsel was unreasonable and violated § 29-05-20.

Impact

This decision refines North Dakota’s implied-consent and post-arrest counsel jurisprudence by:

Emphasizing that any mention of counsel before a chemical test—even after an initial refusal—triggers a statutory right to a prompt, reasonable opportunity to contact an attorney.
Confirming that courts must evaluate counsel requests under the totality of the circumstances, not by rigid “two-hour” benchmarks alone.
Warning law enforcement that unnecessary delay—when equipment and communications are readily available—betrays the statutory balance between encouraging testing and preserving a limited right to counsel.

Future administrative hearings and police procedures will need to account for this precedent, ensuring motorists who request counsel are not unreasonably deferred, thereby risking reversal of license suspensions.

Complex Concepts Simplified

Implied Consent: Under North Dakota law, driving on public roads implies a driver consents to chemical tests when lawfully arrested for DUI. Refusal triggers automatic license suspension.
Refusal to Submit: A “no” answer, silence, or providing inadequate samples counts as refusal—drivers cannot remain ambivalent to avoid consequences.
Qualified Right to Counsel (N.D.C.C. § 29-05-20): After a DUI arrest, if a driver asks for an attorney before testing, officers must allow a “reasonable opportunity” to call—so long as it does not materially interfere with the test.
Totality of the Circumstances: Courts weigh request timing, availability of phones or facilities, and remaining time for an accurate test, rather than apply fixed time-limit formulas.
“Cure” of a Refusal: Statutes permit a driver to change their mind and agree to testing within a reasonable period, ensuring tests can still be performed accurately.

Conclusion

Skobodzinski v. NDDOT reaffirms North Dakota’s dual policy goals: encouraging chemical testing of DUI suspects while preserving a limited, meaningful right to counsel under § 29-05-20. It clarifies that any unambiguous request for counsel—even after an initial refusal—must be honored promptly when no legitimate operational obstacle exists. By reversing the license revocation, the Court underscores that justice demands both procedural fairness and deference to statutory priorities in DUI enforcement. Law enforcement agencies should update training and protocols to ensure motorists’ counsel requests are not unreasonably delayed, lest license suspensions be undone on review.