Appeal from the District Court of Burleigh County, South Central Judicial District, the Honorable David E. Reich, Judge.
Christine H. McAllister, Burleigh County Assistant State's Attorney, Bismarck, ND, for plaintiff and appellee.
Danny L. Herbel, Bismarck, ND, for defendant and appellant.
Lisa Fair McEvers, Daniel J. Crothers, Dale V. Sandstrom, Carol Ronning Kapsner, Gerald W. VandeWalle, C.J. Sandstrom, Justice, concurring specially.
[¶1] Joseph Smith appeals from a district court criminal judgment and conviction entered on a conditional plea of guilty for driving under the influence of an intoxicating liquor (" DUI" ), in violation of N.D.C.C. § 39-08-01, a class B misdemeanor. Smith argues the district court erred in denying his motion to suppress evidence that he claims was obtained in violation of
Missouri v. McNeely, 133 S.Ct. 1552, 185 L.Ed.2d 696 (2013), and his constitutional rights under the Fourth Amendment to the United States Constitution, and Article I, Section 8 of the North Dakota Constitution.
Smith consented to take the chemical breath test given by the law enforcement officer, therefore, Smith's constitutional rights were not violated as a matter of law by North Dakota's implied consent law. We affirm, concluding the district court did not err in denying Smith's motion to suppress.
[¶2] On July 21, 2013, a Burleigh County deputy arrested Smith for DUI. Prior to arrest, the deputy observed Smith swerve. Smith subsequently parked his car in a parking lot and the deputy approached Smith. Smith admitted to having too much to drink. Smith indicated he had consumed ten drinks prior to driving but believed he was still able to drive. Smith consented to taking field sobriety tests but admitted he would not pass. Smith passed the one legged stand test but failed the horizontal gaze nystagmus and walk and turn tests. The deputy provided Smith with the North Dakota implied consent law advisory, stating:
As a condition of operating a motor vehicle on a highway or a public or private area to which the public has a right of access to, you have consented to taking a test to determine whether you are under the influence of alcohol or drugs. I must inform you that: (a) North Dakota law requires you to take a breath screening test to determine if you are under the influence of alcohol; (b) North Dakota law requires you to submit to a chemical test to determine whether you are under the influence of alcohol or drugs. Refusal to take this test as directed by a law enforcement officer is a crime punishable in the same manner as DUI and includes being arrested. I must also inform you that refusal to take the test as requested by a law enforcement officer may result in a revocation of your driver's license for up to a minimum of one hundred and eighty days and potentially up to three years. Do you understand these consequences?
Smith indicated he understood the consequences and consented to the preliminary breath test. Smith's preliminary breath test result was 0.156 percent alcohol concentration, and he was placed under arrest. The deputy read Smith his Miranda rights and, for the second time, provided Smith with the North Dakota implied consent law advisory. Again, Smith indicated he understood the consequences and consented to the Intoxilyzer 8000 test. Smith was transported to the Burleigh County Detention Center, where an Intoxilyzer 8000 test was administered. Smith's Intoxilyzer 8000 test result was 0.152 percent alcohol concentration.
[¶3] In October 2013, Smith moved to suppress evidence, seeking suppression of the Intoxilyzer 8000 test results. Smith claimed the Intoxilyzer 8000 test result was obtained without a warrant and without an exception to the warrant requirement, in violation of U.S. Const. amend. IV and N.D. Const. art. I, § 8. The State opposed the motion to suppress, and Smith replied. In November 2013, the district court denied Smith's motion to suppress. In December 2013, the district court accepted Smith's conditional plea of guilty for DUI, and Smith appealed.
[¶4] The applicable standard of review of a district court's decision to grant or deny a motion to suppress evidence is well established.
" 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 ...