Appeal from the District Court of Burleigh County, South Central Judicial District, the Honorable Cynthia Feland, Judge.
Patricia L. Wilson, Assistant State's Attorney, Bismarck, ND, for plaintiff and appellee.
Daniel J. Borgen, Bismarck, ND, for defendant and appellant.
Lisa Fair McEvers, Carol Ronning Kapsner, Dale V. Sandstrom, Daniel J. Crothers, Gerald W. VandeWalle, C.J. Opinion of the Court by McEvers, Justice.
[¶1] James Nagel appeals from a criminal judgment entered on a conditional plea of guilty to driving under the influence of intoxicating liquor, reserving his right to appeal the district court's denial of his motion to suppress evidence. Nagel argues all evidence obtained after the administration of his pre-arrest onsite screening test should be suppressed because he did not voluntarily consent to the test. Because there is sufficient competent evidence to support the district court's decision that Nagel voluntarily consented to the pre-arrest onsite screening test, the court did not err in denying his motion to suppress evidence. We affirm the judgment.
[¶2] On December 22, 2013, a Burleigh County deputy sheriff received a call about
a hit and run, informing him of the license plate number of the suspected vehicle and the registered address associated with the vehicle's owner. The deputy drove to the residence of the owner of the suspected vehicle. On the way to the residence, the deputy observed a single set of tire tracks in the fresh snow that crossed the lane lines and lead to the residence. Upon arriving, the deputy knocked on the door and an individual, later identified as Nagel, answered the door. Nagel permitted the deputy to inspect his vehicle, which was located in the garage. The deputy observed the damage to the vehicle was consistent with the hit and run accident. During the conversation, the deputy smelled a strong odor of an alcoholic beverage coming from Nagel and noticed Nagel's eyes were bloodshot and his speech was slurred. There was no dispute that Nagel had driven his vehicle that evening. Additionally, Nagel admitted he had been drinking that evening, but denied drinking after returning home.
[¶3] Nagel elected not to complete field sobriety testing. Nagel initially refused to take the pre-arrest onsite screening test. After the deputy read Nagel the implied consent advisory, Nagel agreed to take a pre-arrest onsite screening test. The result of the test was .198 percent alcohol concentration. The deputy then arrested Nagel for driving under the influence. The deputy read Nagel the implied consent advisory again and Nagel agreed to take an Intoxilyzer breath test. Nagel moved to suppress the results of the breath tests because he alleged they were 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. Nagel requested a hearing on his motion to suppress evidence. On April 30, 2014, a hearing was held, and the district court denied Nagel's motion to suppress evidence, finding:
Operation of a motor vehicle is a privilege, not a right; and with that privilege comes certain requirements. One of those is to understand that if a law enforcement officer makes a request, you're required to consent; and if you don't do that, there are consequences for that consent, albeit very difficult consequences for a person to have to decide. Still, the person has the choice not to consent.
I don't find anything in this case out of the ordinary that indicates that he wasn't adequately advised by the law enforcement officer as to what the status of the law was. He was given an opportunity to decline to provide that sample. He didn't decline to provide that sample; and he consented to both the initial field sobriety on-site screening device, as well as a subsequent breath test via the Intoxilyzer. So I am going to deny your motion to suppress.
Nagel entered a conditional plea of guilty under N.D.R.Crim.P. 11(a)(2) to driving under the influence of intoxicating liquor in violation of N.D.C.C. § 39-08-01, reserving the right to appeal the court's denial of his suppression motion. The district court accepted Nagel's conditional plea of guilty, and Nagel appealed.
[¶4] On appeal, Nagel argues the results of both the preliminary breath test and the Intoxilyzer test should have been suppressed as illegally acquired evidence, because the pre-arrest onsite screening test qualified as a warrantless and unreasonable search under U.S. Const. amend. IV and N.D. Const. art. I, § 8. Nagel conceded at oral argument that our holding in State v. Smith,2014 ND 152, 849 N.W.2d 599, decided after the motion to suppress, applies to ...