Appeal from the District Court of Burleigh County, South Central Judicial District, the Honorable James S. Hill, Judge.
Alexander J. Stock, Assistant State's Attorney, Bismarck, ND, for plaintiff and appellee.
Danny L. Herbel, Bismarck, ND, for defendant and appellant.
Ken R. Sorenson, Assistant Attorney General, Bismarck, ND, for amicus curiae North Dakota Attorney General.
Gerald W. VandeWalle, C.J., Carol Ronning Kapsner, Lisa Fair McEvers, Daniel J. Crothers. Opinion of the Court by VandeWalle, Chief Justice. McEvers, Justice, concurring. Sandstrom, Justice, dissenting.
VandeWalle, Chief Justice.
[¶1] Ruthie Mann appealed from a district court order denying her motion to dismiss a criminal charge for refusing to submit to chemical testing and from a criminal judgment sentencing her to five years in prison with all but eighteen months suspended. We affirm the district court's order denying Mann's motion to dismiss. We reverse the criminal judgment and remand for the district court to enter judgment against Mann for a class B misdemeanor.
[¶2] During the night of June 16, 2014, a Bismarck police officer approached a vehicle driven by Ruthie Mann. While talking with Mann, the officer detected alcohol, and Mann admitted to consuming alcohol. When Mann was unable to complete field sobriety testing, the officer arrested her for driving under the influence. The officer informed Mann of her Miranda rights and read North Dakota's implied consent advisory to her. When the officer asked Mann to submit to chemical testing, she became argumentative, which the officer understood as a refusal.
[¶3] The State charged Mann with refusal to submit to chemical testing. The State asserted Mann had three previous convictions for qualifying offenses under N.D.C.C. § 39-08-01(3), and the State charged Mann with a class C felony. Before trial, Mann asked the district court to dismiss the charge because she alleged North Dakota's statute making it a crime to refuse to submit to chemical testing was unconstitutional under the Fourth Amendment of the United States Constitution and North Dakota Const. art. 1, § 8. The district court denied the motion to dismiss the charge.
[¶4] Additionally, Mann asked the district court to bifurcate her trial, with the first part of the trial concerning whether Mann committed the criminal act of refusal to consent to chemical testing and the second part of the trial concerning whether Mann had been convicted of the three
prior offenses. Mann argued this bifurcated trial was necessary to avoid evidence of her prior convictions tainting the jury's determination of whether she was guilty of refusal to submit to chemical testing on this particular occasion. The court also denied this request.
[¶5] After the parties presented evidence, the court instructed the jury on the essential elements of the charged offense. The instructions failed to list three prior offenses as an essential element of the class C felony charge and only included the elements necessary to find Mann guilty of criminal refusal on this particular occasion. The jury found Mann guilty.
[¶6] Before sentencing, Mann made a motion to conform the criminal judgment with the jury verdict, arguing the jury never found her guilty of all the elements necessary for the class C felony charge. The State agreed, conceding the jury never made a determination on the predicate offenses and only found Mann guilty of criminal refusal on this particular occasion. The parties agreed Mann should be sentenced to a class B misdemeanor as a first-time offender under N.D.C.C. § 39-08-01(3). The district court disagreed, finding N.D.C.C. § 39-08-01(3) gave it the ability to judicially notice the prior offenses necessary to prove the class C felony charge. Based upon the available records, the court found sufficient evidence of Mann's three prior qualifying offenses. Because of this finding, the court entered a criminal judgment against Mann for a class C felony. In accordance with sentencing provisions, the court sentenced Mann to five years in prison with all but eighteen months suspended.
[¶7] Mann argues the district court erred in denying her motion to dismiss because her prosecution under N.D.C.C. § 39-08-01(1)(e), North Dakota's criminal refusal statute, is unconstitutional under the Fourth Amendment of the United States Constitution and North Dakota Const. art. I, § 8. This Court has rejected these same arguments. See, e.g., State v. Morel, 2015 ND 198, 870 N.W.2d 26; State v. Kordonowy, 2015 ND 197,
¶ 12, 867 N.W.2d 690; State v. Birchfield, 2015 ND 6, ¶ 19, 858 N.W.2d 302. Mann provides no compelling arguments warranting departure from these holdings. We continue to hold N.D.C.C. § 39-08-01(1)(e) is constitutional under the Fourth Amendment and North Dakota Const. art. I, § 8.
[¶8] Mann argues the district court erred by not conforming its criminal judgment with the jury verdict. In doing so, Mann raises the issue of whether N.D.C.C. § 39-08-01(3) authorizes a court to take judicial notice of a defendant's prior offenses when such offenses are an essential element of the charged offense. Mann argues the court's ability to take judicial notice of prior convictions under N.D.C.C. § 39-08-01(3) is limited to matters of pleading and does not allow judicial notice of an essential element of a charged offense. The State agrees.
[¶9] As a preliminary matter, we consider whether Mann's three prior convictions constitute an essential element of her class C felony charge. Whether a prior offense constitutes an essential element of a crime depends upon the offense charged. A prior offense constitutes an essential element if it elevates the offense of a given crime. State v. Tutt,2007 ND 77,
¶ 8, 732 N.W.2d 382. A prior offense does not constitute an essential element if it only enhances the sentence of a given crime. Id. ...