In Bickler v. N.D. State Highway Comm'r, 423 N.W.2d 146 (N.D. 1988), a defendant requested to speak with his attorney "in a private setting." Id. at 147.
The arresting officer refused to allow the defendant to consult with his attorney out of the officer's view. Id. The attorney left the jail without asking Bickler any questions. Id. Bickler refused to take an intoxilyzer test and his license was revoked. Id.
A hearing officer found Bickler had an "opportunity to consult with an attorney" but still refused to submit to the test. Id. The hearing officer revoked Bickler's driving privileges for one year. Id.
The district court reversed and ruled that "a reasonable opportunity to consult with counsel required a free and open discussion between the attorney and client, for which a private room should be provided, if available." Id.
The Court reversed the district court and affirmed the hearing officer holding that "when an arrested person asks to consult with counsel before electing to take a chemical test he must be given the opportunity to do so out of police hearing, and law enforcement must establish that such opportunity was provided." Id. at 148.
In that case, the Court reversed a district court's decision that Bickler was not given a reasonable opportunity to consult with his attorney because he was refused a conference in a private setting out of the officer's view. 423 N.W.2d at 147-48.
Bickler never filed a motion to dismiss the charge; rather, Bickler appealed his administrative revocation of his driver's license for one year for refusing to take the Intoxilyzer test. Id. at 147.