Appeal from the District Court of McKenzie County, Northwest Judicial District, the Honorable Robin Ann Schmidt,Judge.
Charles Burke Neff, Assistant State's Attorney, Watford City, ND, for plaintiff and appellee.
Elizabeth Ledgerwood Pendlay, Crosby, ND, for defendant and appellant.
Daniel J. Crothers, Lisa Fair McEvers, Carol Ronning Kapsner, Dale V. Sandstrom, Gerald W. VandeWalle, C.J.
[¶1] James Christian Bauer appeals from a criminal judgment entered upon his conditional plea of guilty to refusal to submit to a chemical test. Bauer pled guilty after the district court denied his motion to suppress and dismiss his charge of refusal to submit to a chemical test. Bauer argues the district court erred in denying his motion when it determined the use of post-arrest, post-Miranda silence did not violate Bauer's constitutional rights
against selfincrimination, due process or the Fifth Amendment. We affirm.
[¶2] In February 2014, Watford City Police Officer Dylan Bostic stopped Bauer for speeding at approximately 3:00 a.m., on Highway 85, near Watford City. During the stop, the officer noticed Bauer had slurred speech, watery and bloodshot eyes, poor balance and alcohol on his breath. The officer asked Bauer to submit to field sobriety testing, but Bauer declined. The officer read Bauer the North Dakota implied consent advisory and asked Bauer to submit to a preliminary breath test. Bauer agreed. The test showed a blood alcohol content over the legal limit for driving. The officer arrested Bauer for driving while under the influence and read Bauer his Miranda rights. The officer asked Bauer if he understood his rights, but Bauer remained silent. After transporting Bauer to the county jail, the officer again read Bauer the North Dakota implied consent advisory and asked Bauer if he would submit to a blood draw at the hospital. Bauer did not answer. The officer left Bauer in the squad car to consider his options and upon return, again asked if Bauer would submit to a blood draw. Bauer remained silent. The officer told Bauer if he did not answer, his silence would be considered a refusal. Bauer did not respond. The officer cited Bauer for refusal to submit to onsite screening or chemical test.
[¶3] Bauer moved to dismiss the charge and, in the alternative, to suppress evidence and dismiss the charge, alleging the State's use of Bauer's post-arrest, post-Miranda silence as a refusal under N.D.C.C. § 39-08-01 violates his constitutional rights against self-incrimination, due process or the Fifth Amendment. The district court denied Bauer's motion, finding Bauer's argument failed because his silence was refusal by inaction. Bauer entered a conditional guilty plea to the charge of refusal to submit to onsite screening or chemical test, reserving his right to appeal the district court's denial of the Fifth Amendment and due process claims. Bauer appeals.
[¶4] Our standard of review regarding a trial court's decision to grant or deny a motion to suppress is well established.
" [T]his Court defers to the district court's findings of fact and resolves conflicts in testimony in favor of affirmance. This Court will affirm a district court decision regarding a motion to suppress if there is sufficient competent evidence fairly capable of supporting the district court's findings, and the decision is not contrary to the manifest weight of the evidence. Questions of law are fully reviewable on appeal, and whether a finding of fact meets a legal standard is a question of law."
State v. Morin,
2012 ND 75, ¶ 5, 815 N.W.2d 229 (quoting State v. Johnson, 2009 ND 167, ¶ 6, 772 N.W.2d 591). " We review de novo a claimed violation of a constitutional right." City of Fargo v. ...