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State of North Dakota v. Roger Zink

December 2, 2010

STATE OF NORTH DAKOTA,
PLAINTIFF AND APPELLEE
v.
ROGER ZINK, DEFENDANT AND APPELLANT



Appeal from the District Court of Burleigh County, South Central Judicial District, the Honorable Thomas J. Schneider, Judge.

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

N.D. Supreme CourtState v. Zink, 2010 ND 230

This opinion is subject to petition for rehearing. [Go to Documents]

[Download as WordPerfect]

AFFIRMED. Opinion of the Court by VandeWalle, Chief Justice. Tyrone J. Turner, Assistant State's Attorney, 514 East Thayer Avenue, Bismarck, ND 58501, for plaintiff and appellee. Irvin B. Nodland, P.C., and Chad Nodland (argued), P.O. Box 640, Bismarck, ND 58502-0640, for defendant and appellant.

State v. ZinkNo. 20100117

[¶1] Roger Zink appealed from the judgment entered on a conditional plea of guilty to the charge of driving under the influence of intoxicating liquor ("DUI"). Zink argues the district court erred in denying his motion to dismiss the DUI charge or suppress evidence because law enforcement did not have a reasonable and articulable suspicion that Zink violated the law or was about to violate the law. We affirm, concluding sufficient competent evidence supports the district court's decision to deny Zink's motion.

I.

[¶2] A Burleigh County Sheriff's deputy stopped Zink's car, gave him a field sobriety test, and arrested him for driving under the influence. Before trial, Zink moved the district court to dismiss the DUI charge and, alternatively, to suppress the deputy's testimony stemming from the traffic stop. Zink argued the deputy gave false testimony at a Department of Transportation ("DOT") driver's license suspension hearing about how close he was to Zink's car when he observed the traffic violations. He further argued the deputy's pursuit of his vehicle was unreasonable because the deputy had to have been speeding to be close enough to observe the asserted traffic violations. The State disagreed, noting Zink's stipulation that the deputy had a lawful justification for the traffic stop. The State also argued that while the deputy's testimony as to his proximity to Zink's car when he claimed to have observed the traffic violations was inconsistent with his testimony at the DOT hearing, the deputy was simply giving an estimate of the distance.

[¶3] The district court held a hearing where both the deputy and Zink testified. Acknowledging the deputy's "inaccurate" statements, the district court denied Zink's request to dismiss the charge or suppress evidence.

[¶4] Zink filed a motion to reconsider with an affidavit and four exhibits attached. He claimed the deputy's pursuit was unlawful, and the deputy's testimony at the DOT hearing concerning the traffic violations constituted perjury. He denied that the deputy had a valid justification for the traffic stop--a fact to which he had previously stipulated. Using his personal speed calculations and latitude/longitude determinations, Zink claimed, as he did at the suppression hearing, that the deputy raced upwards of 80 to 100 miles per hour to get into a position to observe a traffic violation. His affidavit highlighted the inconsistency between the deputy's testimony at the DOT hearing, where the deputy estimated he was 10 to 15 feet from Zink's car, and his testimony at the suppression hearing, where the deputy stated he could have been 50 to 75 yards from Zink's car when he observed the traffic violations. The district court denied his motion to reconsider.

II.

[¶5] Zink argues the district court's denial of his motion to dismiss the charge or suppress evidence should be reversed. We outlined the applicable standard of review of a motion to suppress evidence in State v. Mohl:

When reviewing a district court's ruling on a motion to suppress, we defer to the district court's findings of fact and resolve conflicts in testimony in favor of affirmance. We affirm the district court's decision unless we conclude there is insufficient competent evidence to support the decision, or unless the decision goes against the manifest weight of the evidence. 2010 ...


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