dissenting.
I respectfully dissent. I disagree with Justice Levine’s apparent conclusion that Officer Rumple either did not ask, or did not have the authority to ask, Davis to submit to an Intoxilyzer test at any time after he informed Davis that he was or would be charged with the offense of driving a vehicle while under the influence of intoxicating liquor.
During his testimony at the administrative hearing, Officer Rumple, when asked by the administrative hearing officer when Davis first refused, responded, “His first refusal was out on the highway when he was in ... or about to get into one of the police cars out there.” When Officer Rumple was asked by the administrative hearing officer if he had asked Davis more than once on the highway to submit to an Intoxi-lyzer test, Officer Rumple responded, “I believe it was about at least twice if not three times.” When asked whether or not he asked Davis to submit to an Intoxilyzer test in Belcourt, Officer Rumple responded, “I asked him again when we arrived in Belcourt. [Emphasis added.]”
During the administrative hearing Davis did not, at any time, dispute the fact that he was asked and he declined to take an Intoxilyzer test while still on the highway. The only testimony which might suggest that he was not asked on the highway, if not read in conjunction with the rest of Officer Rumple’s testimony, was the following statement by Officer Rumple: “Pri- or to going to Belcourt, we explained to him on three different occasions that he would be asked to take an Intoxilyzer test. [Emphasis added.]” In light of all the evidence, I must conclude that Davis was asked to submit to an Intoxilyzer test while on the highway and that Davis refused to submit to such a test.1 I believe the administrative officer would also so conclude if requested to consider this issue.
While keeping in mind the conclusion I have reached concerning Davis’ refusal on the highway, I essentially agree with much of Justice Levine’s statement of the facts. Therefore, I offer only a brief summary of my view of the essential facts. Davis was initially stopped on Highway 281, in the eastbound lane, in Rolette County, after Officer Rumple observed erratic driving behavior. At the initial stop there apparently was some confusion as to whether or not the stop had occurred on the Turtle Mountain Indian Reservation. While on the highway, Davis was eventually placed under arrest and informed that the arrest was for driving under the influence of alcohol. Davis was then asked, on at least two separate occasions at the scene of the arrest, to submit to an Intoxilyzer test. He refused to submit to the test. Subsequent to these events, Davis was transported by Bureau of Indian Affairs’ [BIA] officers to Belcourt, North Dakota, located on the Turtle Mountain Indian Reservation. The Intoxilyzer which was available on the reservation was not functional. Davis demanded a blood test be performed instead of an Intoxilyzer test. In compliance with his request, the BIA officers started to take Davis to the Belcourt Hospital to have a blood test performed. However, while in route to the Belcourt Hospital, Davis agreed to submit to an Intoxilyzer test. Davis was then taken off the reservation by the BIA officers to Rolla, North Dakota, to have an Intoxilyzer test performed. During the time Davis was being transported to Rolla, Officer Rumple, after conferring with the BIA officers and viewing a map, concluded that the initial arrest had occurred on state land. Upon Davis’ return to Belcourt, Officer Rumple examined the Intoxilyzer test and determined that it would be invalid for use in state proceedings. He then asked Davis to submit to an Intoxilyzer test. Davis again refused.
Davis was granted a hearing to determine whether or not he had refused to submit to a test as required by the implied consent laws. A hearing of this nature is limited to three issues: 1) whether or not the arresting officer had reasonable grounds to believe the person had been driving or was in actual physical control of a vehicle in violation of section 39-08-01, or equivalent ordinance; 2) whether or not the *425individual was placed under arrest; and 3) whether or not the individual refused to submit to the requested test or tests. See § 39-20-05(3), N.D.C.C.2 See generally Buck v. North Dakota State Highway Com’r, 425 N.W.2d 370 (N.D.1988).
The administrative hearing officer determined that Davis’ driving privileges should be revoked because he refused to submit to a test as is required by our implied consent laws. See § 39-20-01, N.D.C.C.3 Upon a review of the transcript of the administrative hearing and the hearing officer’s findings of fact, it is evident that this decision could have been reached in reference to Davis’ initial refusal, which occurred on the highway outside the exterior boundaries of the Indian reservation.
The administrative hearing record seems to disclose that Davis was stopped after Officer Rumple observed him driving erratically; that Davis was then placed under arrest for driving while under the influence of alcohol and asked to perform an Intoxi-lyzer test; and that Davis refused to perform the test. All of these events occurred before Davis was transported to Belcourt. In light of this evidence, I believe that the administrative hearing officer may have had sufficient evidence to determine the three above issues adversely to Davis. § 39-20-05(3), N.D.C.C.
However, a conclusion that Davis violated the implied consent laws while still on the highway does not end the inquiry. A question arises from Davis’ subsequent submission to take a test. We have previously stated that a subsequent agreement to take a test may negate the effect of an initial refusal. Lund v. Hjelle, 224 N.W.2d 552 (N.D.1974). Although I still adhere to my dissent in Lund, I also believe that the decision in Lund should not be extended to apply in this case where the state officer surrendered custody to the BIA officers after Davis’ strong contention that the state officer had no authority over him as he was an Indian who was stopped while driving on a highway within an Indian reservation.
In Lund we said:
*426“[W]e hold that where, as here, one who is arrested for driving while under the influence of intoxicating liquor first refuses to submit to a chemical test to determine the alcoholic content of his blood and later changes his mind and requests a chemical blood test, the subsequent consent to take the test cures the prior first refusal when the request to take the test is made within a reasonable time after the prior first refusal; when such a test administered upon the subsequent consent would still be accurate; when testing equipment or facilities are still readily available; when honoring a request for a test, following a prior first refusal, will result in no substantial inconvenience or expense to the police; and when the individual requesting the test has been in police custody and under observation for the whole time since his arrest."
Lund, 224 N.W.2d at 557 (emphasis added).
In addition to the distinguishing feature that the state officer lost jurisdiction over the person in this case, I believe the holding in Lund requires that the subsequent consent to take the test must be given while testing would still result in an accurate test when the proper testing equipment and facilities are still available, when the subsequent consent will not result in an increase of expense or result in substantial inconvenience to the authorities, and when the individual has remained in continual custody and observation of the proper authorities since the time of arrest. Davis’ subsequent consent did not occur under such circumstances. It seems only reasonable to me that the state and its personnel should not be held accountable for the actions of the BIA officers who were acting in conformity with Davis’ view that he was not subject to state jurisdiction.
Justice Levine has presented the following question:
“The question presented is whether a state police officer who arrests an enrolled member of the Turtle Mountain Band of Chippewa Indians off the Reservation for a crime committed off the Reservation but transports him on to the Reservation has the authority while on the Reservation to request the Indian arrestee to take a chemical test off the Reservation.”
Justice Levine, after a review of Indian jurisdiction law, concluded that Officer Rumple did not have any authority while on the Indian reservation to ask Davis to submit to a chemical test off the reservation. I agree with Justice Levine’s answer to that question, but in my view of the evidence both the question and answer are immaterial.
Notwithstanding the above, it is interesting to note that we have previously refused to apply the decision in Lund in a case involving first a consent and then a refusal. Clairmont v. Hjelle, 234 N.W.2d 13 (N.D.1975). While the circumstances of the case at hand and Clairmont are different, what we said in Clairmont seems pertinent:
“In the one case the test can be made, though slightly delayed; in the other, it cannot be made at all.”
Id. 234 N.W.2d at 16. Here, it is questionable whether a proper test could, at such a belated time, be made at all.
Once again, I feel compelled to remind the Court of the reasons for the enactment of the implied consent laws:
“In an attempt to reduce the holocaust on our highways, part of which is due to the driver who has imbibed too freely of intoxicating liquor, the so-called ‘Implied Consent Act’ was enacted by our legislature in 1959.”
Colling v. Hjelle, 125 N.W.2d 453, 459-60 (N.D.1963). We may take judicial notice of the carnage caused by the drunk driver. Kobilansky v. Liffrig, 358 N.W.2d 781 (N.D.1984).
I would reverse and remand this case to the Department of Transportation for determination of whether or not Davis violated the implied consent laws while on the highway outside of the Indian reservation and before he was placed in the custody of the BIA.
. This appears to be consistent with Justice VandeWalle's interpretation of the evidence.
. The pertinent part of section 39-20-05(3), N.D. C.C., reads:
"The scope of a hearing for refusing to submit to a test under section 39-20-01 may cover only the issues of whether a law enforcement officer had reasonable grounds to believe the person had been driving or was in actual physical control of a vehicle in violation of section 39-08-01 or equivalent ordinance; whether the person was placed under arrest; and whether that person refused to submit to the test or tests. The scope of a hearing for refusing to submit to a test under section 39-20-14 may cover only the issues of whether the law enforcement officer had reason to believe the person committed a moving traffic violation or was involved in a traffic accident as a driver, whether in conjunction with the violation or the accident the officer has, through the officer’s observations, formulated an opinion that the person’s body contains alcohol and, whether the person refused to submit to the onsite screening test. Whether the person was informed that the privilege to drive would be revoked or denied for refusal to submit to the test or tests is not an issue.”
It is interesting to note the differences between the above language of section 39-20-05(3), N.D.C.C., and the pertinent language from section 39-20-01, N.D.C.C., which reads:
"The test or tests must be administered at the direction of a law enforcement officer only after placing the person, except persons mentioned in section 39-20-03, under arrest and informing that person that the person is or will be charged with the offense of driving or being in actual physical control of a vehicle upon the public highways while under the influence of intoxicating liquor, drugs, or a combination thereof_ The law enforcement officer shall also inform the person charged that refusal of the person to submit to the test determined appropriate will result in a revocation for up to three years of the person’s driving privileges.”
As the issue of the difference between the two sections was not raised below, I leave to another day the legal consequences of the differences. See Lynch v. Williston City Com’n, 460 N.W.2d 136, 138 (N.D.1990). Hopefully the legislature will act to clarify this matter.
. The pertinent part of section 39-20-01 reads:
"Implied consent to determine alcoholic and drug content of blood. Any person who operates a motor vehicle on a highway or on public or private areas to which the public has a right of access for vehicular use in this state is deemed to have given consent, and shall consent, subject to the provisions of this chapter, to a chemical test, or tests, of the blood, breath, saliva, or urine for the purpose of determining the alcoholic, other drug, or combination thereof, content of the blood.”