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City of Bismarck v. Bullinger

January 26, 2010

CITY OF BISMARCK, PLAINTIFF AND APPELLEE
v.
LAUNI MAE BULLINGER, DEFENDANT AND APPELLANT



Appeal from the District Court of Burleigh County, South Central Judicial District, the Honorable Robert O. Wefald, Judge.

The opinion of the court was delivered by: VandeWalle, Chief Justice

AFFIRMED.

[¶1] Launi Bullinger appealed after entering a conditional plea of guilty to the charge of driving under the influence of intoxicating liquor. We affirm the district court's denial of Bullinger's motion to suppress the results of her blood test because she did not clearly and unequivocally refuse to submit to the blood test.

I.

[¶2] On December 13, 2008, Bullinger was cited for driving under the influence of intoxicating liquor. She moved to suppress the results of her blood test. Officer Mike Bolme of the Bismarck Law Enforcement Center testified at the evidentiary hearing that he observed Bullinger's vehicle at 12:12 a.m. backing away from a stoplight it had struck. After stopping the vehicle and after Bullinger performed field sobriety tests, Officer Bolme arrested Bullinger at 12:28 a.m. for driving under the influence. Officer Bolme took Bullinger to the Bismarck Law Enforcement Center for a breath test.

[¶3] Officer Bolme testified he gave Bullinger the implied consent warning. Officer Noah Lindelow of the Bismarck Law Enforcement Center testified he attempted to conduct a breath test at 1:02 a.m. The test was invalid because Bullinger provided an insufficient breath sample. Officer Lindelow began to conduct a second breath test at 1:28 a.m. The second test was also invalid because Bullinger provided an insufficient breath sample. Officer Lindelow determined there was approximately one- half hour left in the two hour time period to obtain a chemical test. See N.D.C.C. § 39-08-01(1)(a) (requiring a chemical test to be performed within two hours of driving). Officer Bolme decided to take Bullinger to a hospital to perform a blood test because Bullinger had given inadequate breath samples for two breath tests.

[¶4] Bullinger testified at the evidentiary hearing that, while still in the intoxilyzer room, she informed Officer Lindelow that she worked at St. Alexius Medical Center in Bismarck. She testified that information was "repeatedly" relayed to Officer Bolme. Officer Bolme testified Bullinger told him she worked at St. Alexius after they arrived at the hospital. Bullinger testified that, after Officer Bolme told her he was taking her to St. Alexius for a blood draw, "I asked him if there was any way possible we could go to Medcenter instead because I was employed [at St. Alexius] and I would rather not go there." She stated, "It was a repeated conversation of I do not want to go to St. [Alexius] for the blood draw, I want to go to Medcenter, and I was not given a reason why." Bullinger testified she told Officer Bolme she would provide a blood sample at Medcenter One, but would not provide one at St. Alexius. According to Bullinger, Officer Bolme then told her, "This is the next step because you weren't cooperating at the police station. So the next step is to get a blood test and we're doing that at St. Alexius." Bullinger believed, "I had no other choice but to submit to a blood test at St. Alexius Hospital because that is what he told me." Bullinger later testified, "I don't feel as though it was very well conveyed in the conversation that I had with Officer Bolme that I would not submit to a blood sample at St. Alexius Hospital." Officer Bolme gave Bullinger the implied consent warning a second time, prior to the blood test. Officer Bolme testified that Bullinger consented to the blood test at St. Alexius. Officer Bolme and a nurse conducted the blood draw. The record does not reveal the results of the blood test, or the reasons why Officer Bolme would not take Bullinger to Medcenter One for the blood test.

[¶5] At the end of the hearing, the district court denied Bullinger's motion, stating:

And when the evidence was that she was advised of the implied consent law, all she had to say is I am not giving a blood test, period, and it would have been over. She would have lost her license for a significant period of time, but all she had to do is to say I'm not doing the blood test and she still would have been in court on the physical evidence of driving under the influence as opposed to the chemical test. So I see nothing here.

The fact that she was compelled, the fact that she felt compelled, the fact that she wanted to go to another hospital is irrelevant, she doesn't get to choose that. So the motion to suppress the evidence is denied.

Bullinger subsequently entered a conditional guilty plea, reserving her right to appeal the district court's denial of her motion to suppress the results of the blood test.

II.

[ΒΆ6] Bullinger argues she affirmatively refused to submit to the blood test when she informed Officer Bolme she would not provide a blood sample at St. Alexius, but would at Medcenter One. The City argues Bullinger did not withdraw her implied consent, and she ...


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