Appeal from the District Court of Stutsman County, Southeast Judicial District, the Honorable Thomas E. Merrick, Judge.
Katherine M. Naumann, Jamestown, ND, for plaintiff and appellee.
Lee M. Grossman, Valley City, ND, for defendant and appellant.
Daniel J. Crothers, Lisa Fair McEvers, Dale V. Sandstrom, Carol Ronning Kapsner, Gerald W. VandeWalle, C.J.
Daniel J. Crothers, Justice.
[¶1] Daryl Hennings appeals from a criminal judgment finding him guilty of operating a vehicle while under the influence of alcohol. Hennings argues insufficient evidence existed to convict him because the State did not prove he was driving a motor vehicle while under the influence of alcohol. We affirm and remand for entry of judgment consistent with this opinion.
[¶2] Stutsman County Deputy Sheriff Thom was dispatched on September 13, 2014, at 7:45 p.m. to investigate a complaint dirt-bikes were being driven at the Pipestem Dam recreational area near Jamestown. When Thom arrived he heard dirt-bikes near the bottom of the dam and saw a headlight in the trees. Approximately ten minutes later Thom came to a prairie trail where he saw Hennings and another man, Wayne Deery, standing by two dirt-bikes. Thom smelled alcohol when he approached the men. A third man, Gary Ronholm, approached on a dirt-bike. While Thom checked the men's driver's licenses in his vehicle, Deery fled the scene on foot. Thom called for assistance and Sergeant Hoyt and Trooper Sova arrived approximately fifteen minutes later.
[¶3] Thom and Hoyt searched for Deery while Sova administered field sobriety tests on Hennings and Ronholm. Hennings failed four field sobriety tests and was arrested at 8:53 p.m., approximately forty-six minutes after Thom first observed him. At 9:28 p.m. Sova administered an Intoxilyzer test on Hennings at the Stutsman County Correctional Center, which produced a .168 BAC reading. Hennings was charged and found guilty of " Person Under the Influence of Intoxicating Liquor or Any Other Drugs or Substance Not to Operate Vehicle," in violation of N.D.C.C. § § 39-08-01(1)(a) and 39-08-01(1)(b). Hennings appeals.
[¶4] Hennings argues the evidence was insufficient to prove beyond a reasonable doubt he drove a vehicle while under the influence of alcohol. Under N.D.C.C. § 39-08-01(1)(a)-(b):
" 1. A person may not drive or be in actual physical control of any vehicle upon a highway or upon public or private areas to which the public has a right of access for vehicular use in this state if any of the following apply:
a. That person has an alcohol concentration of at least eight one-hundredths of one percent by weight at the time of the performance of a chemical test within two hours after the driving ...