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State v. Brenny

Supreme Court of North Dakota

July 31, 2014

State of North Dakota, Plaintiff and Appellee,
v.
Jason Robert Brenny, Defendant and Appellant

Appeal from the District Court of Burleigh County, South Central Judicial District, the Honorable Bruce A. Romanick, Judge.

Christine H. McAllister, Assistant State's Attorney, Bismarck, N.D., for plaintiff and appellee.

Chad R. McCabe, Bismarck, N.D., for defendant and appellant.

Gerald W. VandeWalle, C.J., Dale V. Sandstrom, Daniel J. Crothers, Lisa Fair McEvers, Carol Ronning Kapsner.

OPINION

Per Curiam.

[¶1] Jason Brenny appealed from a criminal judgment entered upon a conditional guilty plea to driving under the influence of alcohol after the district court denied his motion to suppress the results of an Intoxilyzer test. Brenny argues the results of the Intoxilyzer test were obtained as a result of a warrantless and unconstitutional search and seizure under the state and federal constitutions, because, as a matter of law, the criminal sanctions imposed by North Dakota's implied consent law established his consent to the test was coerced and was not freely and voluntarily given. We have recently rejected the argument that, as a matter of law, the criminal sanctions of the implied consent law establish consent to a blood-alcohol test was not freely and voluntarily given. State v. Smith, 2014 ND 152, ¶ ¶ 1, 16-22, State v. Boehm, 2014 ND 154, ¶ ¶ 17-22. See McCoy v. North Dakota Dep't of Transp., 2014 ND 119, ¶ ¶ 1, 21-24 . We conclude there was sufficient competent evidence to support the district court's determination that Brenny's consent to the Intoxilyzer test was freely and voluntarily given and the court's decision is not contrary to the manifest weight of the evidence. We affirm the judgment under N.D.R.App.P. 35.1(a)(7).

[¶2] Gerald W. VandeWalle, C.J., Dale V. Sandstrom, Daniel J. Crothers, Lisa Fair McEvers, Carol Ronning Kapsner.


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