State v. Hernandez 2026 ND 95

IN THE SUPREME COURT

STATE OF NORTH DAKOTA

2026 ND 95

State of North Dakota, Plaintiff and Appellee v.

Joseph Anthony Hernandez, Defendant and Appellant No. 20250370

Appeal from the District Court of Burleigh County, South Central Judicial District, the Honorable Bonnie L. Storbakken, Judge.

AFFIRMED.

Opinion of the Court by Friese, Justice, in which Chief Justice McEvers and Justice Bahr joined. Justice Tufte filed an opinion specially concurring in which Justice Jensen joined.

Daniel J. Vondrachek II, Assistant State's Attorney, Bismarck, ND, for plaintiff and appellee.

Chad R. McCabe (argued) and Katie L. McCabe (on brief) under the Rule on Limited Practice of Law by Law Students, Bismarck, ND, for defendant and appellant.

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State v. Hernandez No. 20250370

Friese, Justice.

[¶1] Joseph Anthony Hernandez appeals from a criminal judgment entered on a conditional plea of guilty, reserving the right to appeal the district court order denying his motion to dismiss. Hernandez argues he was denied an opportunity to consult with counsel before deciding whether to submit to alcohol testing. We affirm the criminal judgment.

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[¶2] On December 15, 2024, at approximately 5:37 p.m., a Burleigh County Sheriff's Deputy stopped Hernandez for failure to maintain a driving lane and making a wide turn. The deputy detected the odor of alcohol and observed Hernandez had red, watery eyes. The deputy asked Hernandez to submit to standard field sobriety tests, and Hernandez complied. During the tests, the deputy observed signs of impairment. The deputy read the implied consent advisory to Hernandez, and Hernandez refused the deputy's requested preliminary breath test. The deputy further explained the reasons for the stop, his observations of impairment, and again requested a preliminary breath test. Hernandez again refused. The deputy arrested Hernandez for driving under the influence.

[¶3] The deputy placed Hernandez in his patrol vehicle and read the chemical test advisory to Hernandez. The deputy asked Hernandez to take a chemical breath test at the jail. Hernandez responded: "No—cause—man its—its bullshit man, yeah so I'm not gonna do none of that. You know what I mean?" The deputy transported Hernandez to the jail.

[¶4] At the jail, the deputy explained the potential driver's license consequences and how to request a hearing to contest license revocation. Hernandez responded: "I got a paid lawyer so I ain't worried about that." The deputy later explained the consequences of missing the court date. Hernandez responded: "No I'll have my—I'll call my lawyer as soon as I leave from here."

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[¶5] The deputy cited Hernandez with DUI-Refusal-1st Offense, a class B misdemeanor, in violation of N.D.C.C. § 39-08-01. Hernandez moved to dismiss, arguing he was denied an opportunity to consult with counsel before deciding whether to submit to alcohol testing. The State opposed the motion, arguing Hernandez did not request to speak with counsel. At the evidentiary hearing, the parties stipulated to admit the dash camera video of the traffic stop and arrest. The parties did not offer testimony or other evidence. After the hearing, the district court denied the motion to dismiss, finding Hernandez's right to counsel was not violated because he "did not make an affirmative mention of a need for an attorney[.]"

[¶6] Based on a plea agreement, Hernandez entered a conditional plea of guilty under N.D.R.Crim.P. 11(a)(2) and 43. The district court accepted the plea agreement and conditional plea. The court entered a Rule 43 criminal judgment. Hernandez appeals.

II

[¶7] Hernandez argues he was denied an opportunity to consult with counsel before deciding whether to submit to alcohol testing. In determining whether an arrestee requested an attorney for purposes of deciding whether to consent to chemical testing, this Court adopted a "bright-line standard against which a purported request for an attorney should be judged[.]" Washburn v. Levi, 2015 ND 299, ¶ 9, 872 N.W.2d 605. In Baillie v. Moore, this Court articulated the standard:

[W]e hold that if a DUI arrestee, upon being asked to submit to a chemical test, responds with any mention of a need for an attorney— to see one, to talk to one, to have one, etc.—the failure to allow the arrestee a reasonable opportunity to contact an attorney prevents the revocation of his license for refusal to take the test. A refusal to take the test under these conditions is not the affirmative refusal necessary to revoke a license under § 39-20-04, N.D.C.C.

522 N.W.2d 748, 750 (N.D. 1994) (holding driver's rights violated when officer interpreted request to contact attorney as a refusal to take chemical test); State v. Lee, 2012 ND 97, ¶ 11, 816 N.W.2d 782 (explaining Baillie applies to criminal

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cases). This presents a mixed question of fact and law. See, e.g., Skobodzinski v. N.D. Dep't of Transp., 2025 ND 84, ¶ 15, 20 N.W.3d 105. The Baillie bright-line rule is not triggered unless the DUI arrestee has been asked to take a chemical test and the arrestee "makes any mention of the need for an attorney." Baillie, 522 N.W.2d at 750. After the facts are established, "their significance presents a question of law, which we review de novo." Skobodzinski, ¶ 15. [¶8] "Our purpose in adopting a bright-line rule was to avoid the need to engage in case-by-case consideration of the surrounding circumstances, such as the timing of the request, the alleged 'casual' nature of the conversation or whether specific 'magical words' were used." Lee, 2012 ND 97, ¶ 9 (citing Baillie,

522 N.W.2d at 750). The "directive in Baillie is clear: If a DUI arrestee who has been asked to take a chemical test makes 'any mention of a need for an attorney,' the officer 'must assume the arrestee is requesting an opportunity to consult with an attorney and must allow a reasonable opportunity to do so.'" Lee, ¶ 9 (quoting Baillie, at 750). "[T]he directive in Baillie is not without limits[.]" Id. "An arrestee's statutory right to request to speak with an attorney must be unambiguous."

Washburn, 2015 ND 299, ¶ 13. However, "law enforcement must seek clarification of an ambiguity before denying the statutory right to counsel, even when a request for an attorney is ambiguous." Skobodzinski, 2025 ND 84, ¶ 19. [¶9] Hernandez argues, under Baillie, any mention of an attorney places the burden on the officer to clarify the arrestee's intention. He asserts he clearly requested an opportunity to consult counsel under Baillie, but even if his request was ambiguous, the burden was on the deputy to seek clarification of the ambiguity before denying a request to consult counsel. Hernandez highlights the conversation with the deputy when the deputy explained the need to attend his court date, and Hernandez responded: "No I'll have my—I'll call my lawyer as soon as I leave from here." Hernandez also relies on Cudmore v. N.D. Dep't of Transp., 2016 ND 64, ¶ 10, 877 N.W.2d 52, where this Court explained, "the reference to an attorney made by a person in a less bombastic and profane conversation might well invoke the bright line of Baillie." The State argues Hernandez did not request to speak with an attorney and the mention of a future discussion with his attorney does not trigger the bright-line rule of Baillie.

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[¶10] The district court found:

Here, [the deputy] read the implied consent advisory for a screening test to the Defendant, which the Defendant refused. Subsequently, [the deputy] advised the Defendant of the reasons for his request for a preliminary breath test, placed the Defendant under arrest and read him his Miranda rights. [The deputy] th[e]n placed the Defendant in his patrol vehicle where he read the Defendant the implied consent advisory for a chemical breath test to be conducted at the [jail]. Defendant refused the chemical breath test as well. During both requests, Defendant did not make any affirmative mention of a need to speak to an attorney and the traffic stop had concluded.

At the [jail], the Defendant made two passive references to an attorney. First, as [the deputy] explains to the Defendant the potential impact to his driver's license and requesting a hearing to dispute the charges, Defendant states "I got a paid lawyer so I aint [sic] worried about that." Second, as [the deputy] discusses the court date and potential consequences if Defendant misses his court date, the Defendant states "No I'll have my . . . I'll call my lawyer as soon as I leave from here." In both instances, the Defendant references to an attorney in the future tense rather than an immediate affirmative request for an attorney—to see one, to talk to one, to have, etc. Both [the deputy] and the Defendant were courteous with each other throughout their entire interaction, to the point where [the deputy] assisted the Defendant in calling his girlfriend. At no point, did the Defendant ask for clarification regarding his right to an attorney or make an affirmative mention of a need to speak to an attorney. Accordingly, since Defendant did not make an affirmative mention of a need for an attorney, his statutory right to counsel was not violated.

[¶11] The district court's factual findings are supported by the record. Specifically, "[a]t no point, did [Hernandez] ask for clarification regarding his right to an attorney or make an affirmative mention of a need to speak to an attorney." Furthermore, Hernandez's comments about an attorney were not in response to the request to submit to a chemical test.

[¶12] In Cudmore, the driver submitted to a preliminary breath test. 2016 ND 64, ¶ 9. After his arrest, "Cudmore inquired about bond in connection with the

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charge and informed the deputy he was going to 'lawyer up.' The deputy read the implied consent warning again and asked Cudmore to submit to a blood test. Cudmore responded, not by requesting to speak with an attorney, but with multiple vulgarities and physical violence." Id. This Court explained:

In this case, the reference to "lawyer up" mixed in with a barrage of profanity launched at the deputy is beyond the bright line in Baillie, either as a matter of fact under the circumstances of this case, or as a matter of public policy. However, the reference to an attorney made by a person in a less bombastic and profane conversation might well invoke the bright line of Baillie. Therefore, we conclude a preponderance of the evidence supports the hearing officer's factual finding that Cudmore did not request to speak with an attorney. Id. ¶ 10. Here, although Hernandez's references to an attorney were "in a less bombastic and profane conversation," they were not in response or reference to either the implied consent advisory or the request for a chemical test. [¶13] Mere mention of an attorney does not automatically trigger an officer's obligation to provide an opportunity to consult counsel. Under Baillie, when an

"arrestee responds with any affirmative mention of a need for an attorney, law enforcement personnel must assume the arrestee is requesting an opportunity to consult with an attorney and must allow a reasonable opportunity to do so." 522 N.W.2d at 750. The standard requires an "affirmative mention of a need for an attorney." Id. (emphasis added). Hernandez did not articulate an affirmative need for an attorney. His statements were not ambiguous. He simply stated he had an attorney, and later that he would call his attorney when he left the jail. Hernandez's right to counsel was not violated because he neither affirmatively asked to consult with an attorney nor did he express a need to consult counsel regarding the request for a chemical test.

III

[¶14] We acknowledge the issues raised by the concurrence but will not address issues not briefed or otherwise argued on appeal. State v. Hajicek, 2020 ND 231, ¶ 16, 951 N.W.2d 203 ("we will not consider issues not briefed on appeal"). We affirm the criminal judgment.

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[¶15] Lisa Fair McEvers, C.J. Douglas A. Bahr

Mark A. Friese

Tufte, Justice, specially concurring.

[¶16] I concur in the result. Hernandez's statements were not an affirmative mention of a need for an attorney under Baillie v. Moore, 522 N.W.2d 748, 750 (N.D. 1994). I write separately to repeat—for what is now the fourth time the issue has surfaced in our cases—that the doctrine the Court applies in Baillie, Washburn, Cudmore, Skobodzinski, and now this case is not an interpretation of N.D.C.C. § 29-05-20. See Jesser v. N.D. Dep't of Transp., 2019 ND 287, ¶¶ 19-22,

936 N.W.2d 102 (Tufte, J., concurring specially); City of Jamestown v. Schultz, 2020 ND 154, ¶¶ 12-14, 946 N.W.2d 740 (Tufte, J., concurring specially); see also Skobodzinski v. N.D. Dep't of Transp., 2025 ND 84, ¶ 36, 20 N.W.3d 105 (Jensen, C.J., concurring) (joined by Tufte, J.) (sharing the same concern). [¶17] Section 29-05-20, N.D.C.C., traces to the 1877 Dakota Territory Code of Criminal Procedure. Kuntz v. State Highway Comm'r, 405 N.W.2d 285, 290 (N.D. 1987) (Erickstad, C.J., dissenting). As quoted in Kuntz, the section provided that

"any attorney at law … at his request, may visit such person after his arrest." Id. As I have explained before, the pronoun "his" was grammatically ambiguous— the last-antecedent rule pointed to the attorney, while close-proximity reading allowed the Kuntz majority to read it as the arrestee. Jesser, 2019 ND 287, ¶ 20. The 2005 revision¹replaced both pronouns with unambiguous referents—"at the attorney's request" and "that person's arrest"—wording that pointed away from the Kuntz reading. Schultz, 2020 ND 154, ¶ 13. The 2021 amendment changed the section again, and it now reads: "at the request of the attorney or the accused, may visit the accused after the accused's arrest." N.D.C.C. § 29-05-20.

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[¶18] My prior concurrences leaned on the pronoun shift to argue that Kuntz's textual footing had eroded. That argument is now beside the point. The 2021 amendment supplies the accused an unambiguous textual hook: an "accused"

may request that an attorney visit. If the statute were the source of what we call a statutory right to counsel before chemical testing, the 2021 amendment would arguably restore—and perhaps broaden—what Kuntz read into the territorial text. But the doctrine the Court actually applies has not tracked any of these textual changes, before or after.

[¶19] The Kuntz doctrine does not credibly pretend to be statutory interpretation. The statute, as enacted in 1877 and as altered in 2005 and amended in 2021, addresses two things: prompt presentment of the accused to a magistrate, and visitation between an attorney and an arrestee. It says nothing about chemical testing. It says nothing about a duty of law enforcement to facilitate a telephone call. It says nothing about the timing of a request, or about clarifying ambiguous statements, or about "any mention of a need for an attorney." Those concepts are not in the text. They are judicial constructs, layered case by case over a generic visitation provision applicable to all persons arrested for any crime, until what we apply in DUI cases bears no resemblance to what the legislature wrote. We have not been doing statutory interpretation. We have been tending a Frankenstein's creature of our own making—assembled, piece by piece, from cases that cite cases that cite Kuntz, and animated by precedent rather than text.

[¶20] Today's case turns on whether two passive, future-tense remarks made well after the chemical-test refusal—"I got a paid lawyer" and "No I'll have my— I'll call my lawyer as soon as I leave from here"—count as the "affirmative mention of a need for an attorney" required by Baillie, 522 N.W.2d at 750. The parties argue at length about verb tense, temporal proximity, courtesy of tone, and the curative-refusal doctrine. None of those concepts is grounded in the statutory text. They are intramural rules of a doctrine the Court built and now polices on its own, case by case.

[¶21] Stare decisis does not require extension. I recognize the weight of stare decisis in statutory interpretation. See Schultz, 2020 ND 154, ¶ 13. But that weight

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is at its weakest when what the Court is preserving is not, in fact, an interpretation of any statute. Jesser, 2019 ND 287, ¶ 22. Refusing to extend a dubious judicial construct to new fact patterns is not an affront to stare decisis— it is the modesty stare decisis presumes.

[¶22] On the framework the Court has built, Hernandez's statements are not requests to consult counsel about the chemical-test decision. He was asked nothing about testing when he made them; the testing decision was already made, and he was on his way out the door. The officer had no duty—statutory or judicial—to interrupt routine release procedures to offer counsel. I agree we should affirm on that ground today.

[¶23] As I have said before, with full briefing and argument the Court should reconsider whether Kuntz was ever a correct reading of the law. Jesser, 2019 ND 287, ¶ 22. If the Legislative Assembly wants to burden law enforcement with assisting an arrestee to consult with counsel before consenting to chemical testing, it should clearly state whether that applies only in DUI cases, what is required to invoke the statutory right, and the extent of the burden on law enforcement. Until the Legislative Assembly provides statutory text to support this purported statutory right, we should extend it no further. [¶24] Jerod E. Tufte

Jon J. Jensen