[Copyrighted Material Omitted]
Appeal from the District Court of Morton County, South Central Judicial District, the Honorable Bruce A. Romanick, Judge.
Justin M. Balzer, Morton County Assistant State's Attorney, Mandan, ND, for plaintiff and appellant.
Thomas M. Tuntland, Mandan, ND, for defendant and appellee.
Lisa Fair McEvers, Carol Ronning Kapsner, Dale V. Sandstrom, Gerald W. VandeWalle, C.J. Opinion of the Court bye McEvers, Justice. Crothers, Justice, concurring specially. Sandstrom, Justice, concurring specially.
[¶1] The State appeals from the district court's order granting Kyle Boehm's motion to suppress blood test results. We reverse and remand for further proceedings.
[¶2] On September 1, 2013, at approximately 12:39 a.m., a Morton county deputy was traveling east when he observed a vehicle traveling west on the same road accelerate past him at a high rate of speed. The deputy's radar detected the vehicle was traveling at 44 m.p.h. in a 25 m.p.h. zone. The deputy initiated a traffic stop. The deputy observed the driver, identified as Boehm, had red, bloodshot, watery eyes. The deputy detected an odor of alcohol coming from the vehicle. Boehm admitted consuming four beers. The deputy conducted field sobriety tests on Boehm. Boehm passed the alphabet test and counting backwards test but failed the horizontal gaze nystagmus (" HGN" ) test. The deputy advised Boehm of the North Dakota implied consent law, asked if Boehm would submit to a preliminary breath test, and Boehm agreed to submit. The result of Boehm's preliminary breath test was .114 percent. At approximately 12:48 a.m., the deputy arrested Boehm for driving under the influence (" DUI" ). The deputy again advised Boehm of the North Dakota implied consent law, asked if
Boehm would submit to a blood test at the Morton county jail, and Boehm agreed to submit. At approximately 1:05 a.m., Boehm's blood was drawn at the Morton county jail by a registered nurse.
[¶3] On October 16, 2013, Boehm moved to suppress the results of the blood test and submitted a brief in support. Boehm argued the blood test " was a search conducted without a search warrant and without voluntary and freely given consent," and the blood test " was drawn in an unreasonable manner" in violation of state and federal constitutional protections. Boehm also argued North Dakota's implied consent law violated
Missouri v. McNeely, 133 S.Ct. 1552, 185 L.Ed.2d 696 (2013), and state and federal constitutional protections. On October 28, 2013, the State filed a brief opposing Boehm's motion to suppress. On November 11, 2013, Boehm filed a reply brief. The parties agreed the facts from the deputy's incident report were accurate and no evidentiary hearing was held. On December 30, 2013, the district court granted Boehm's motion to suppress on grounds not argued by the parties, concluding the deputy did not have probable cause to request Boehm submit to an implied consent preliminary breath test. The district court found the deputy smelled an odor of alcohol coming from the vehicle; observed Boehm's red, bloodshot, watery eyes; Boehm admitted consuming four beers; and Boehm's failed HGN test, but concluded the evidence did not provide the deputy with probable cause. The district court noted the deputy did not observe erratic driving, and Boehm passed the counting backwards test and the recitation of the alphabet test. The district court explained:
From the Court[']s perspective it appears the officer relied basically on the HGN test to determine [Boehm] was impaired. This Court is not comfortable using the HGN test as a sole vehicle for determining probable cause and quite frankly would not allow the HGN into evidence at trial were there not other supporting tests available at trial.
The district court did not address the voluntariness of Boehm's consent to the blood test or the reasonableness of the blood test. The State appeals.
[¶4] On appeal, the State argues: (1) its appeal should be considered because the State has demonstrated the evidence suppressed is substantial proof of a fact material to the case; (2) the district court erred in finding the deputy did not have probable cause to arrest Boehm for DUI; and (3) the blood test did not violate Boehm's rights and the blood test was completed in a proper environment.
[¶5] On appeal, Boehm argues the suppression is required because the blood draw was unreasonable under state and federal constitutional protections. Boehm claims there was no voluntary consent, implied consent is not a valid exception to the warrant requirement, and the blood test being conducted in a non-medica environment is unreasonable.
[¶6] Section 29-28-07, N.D.C.C., strictly limits the prosecution's right to appeal in a criminal case.
State v. Emil, 2010 ND 117, ¶ 5, 784 N.W.2d 137. The State may appeal from an order suppressing evidence if the appeal is " accompanied by a statement of the prosecuting attorney asserting that the appeal is not taken for purpose of delay and that the evidence is substantial proof of a fact material in the proceeding." N.D.C.C. § 29-28-07(5). The prosecution must support its appeal " with an explanation of ...