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State v. Keller

Supreme Court of North Dakota

March 15, 2016

State of North Dakota, Plaintiff and Appellee
v.
Peggy Frederick Keller, Defendant and Appellant

Appeal from the District Court of McKenzie County, Northwest Judicial District, the Honorable Robin A. Schmidt, Judge.

Stephenie L. Davis, McKenzie County Assistant State's Attorney, Watford City, ND, for plaintiff and appellee.

James O. Thompson, Williston, ND, for defendant and appellant.

Daniel J. Crothers, Lisa Fair McEvers, Carol Ronning Kapsner. Opinion of the Court by Crothers, Justice. Dale V. Sandstrom, Gerald W. VandeWalle, C.J., concurred in the result.

OPINION

Page 725

Crothers, Justice.

[¶1] Keller appeals from a criminal judgment after a jury found her guilty of refusing to submit to alcohol testing in violation of N.D.C.C. § 39-08-01(2)(a). Keller argues the district court erred in failing to give her requested jury instructions. We affirm.

I

[¶2] Watford City Police Officer Dylan Bostic stopped Keller after her vehicle drifted within her driving lane. When Bostic approached the vehicle he smelled alcohol and observed Keller had glossy, red eyes and she admitted she had been drinking. Bostic read North Dakota's implied consent advisory to Keller and requested that she submit to a preliminary breath test. When Keller would not take the preliminary breath test, Bostic arrested her for refusal. Bostic placed Keller in his patrol car, again informed her of the North Dakota implied consent advisory and requested that she submit to a chemical test by blood draw. Bostic testified Keller told him she did not know what to do and asked him if she should get an attorney. Bostic informed Keller that he could not give legal advice and that he would consider her response to be refusal.

[¶3] At trial Keller asked the district court to instruct the jury that an individual accused of driving under the influence has a limited statutory right to contact an attorney before deciding whether to submit to alcohol testing. Keller requested the jury be instructed that a request to consult an attorney is a defense to the crime of refusal. Keller also asked the district court to instruct the jury that affirmative refusal is required to find guilt, and the accused does not affirmatively refuse if she requests to contact an attorney and law enforcement fails to provide an opportunity to do so. The district court refused to give Keller's requested instructions and a jury found her guilty of refusing to submit to alcohol testing in violation of N.D.C.C. § 39-08-01(2)(a). Keller appeals.

II

[¶4] Keller argues she was entitled to jury instructions on her right to counsel before submitting to a chemical test and requiring the jury to find she affirmatively refused the test. " 'Jury instructions must correctly and adequately inform the jury of the applicable law and must not mislead or confuse the jury.' State v. Pavlicek, 2012 ND 154, ¶ 14, 819 N.W.2d 521 (quoting Rittenour v. Gibson, 2003 ND 14, ¶ 15, 656 N.W.2d 691). We view the instructions as a whole to determine if they correctly and adequately inform the

Page 726

jury. Pavlicek, at ¶ 14. 'A court errs if it refuses to instruct the jury on an issue that has been adequately raised, but the court may refuse to give an instruction that is irrelevant or inapplicable.' Id. (quoting State v. Zottnick,2011 ND 84, ¶ 6, 796 N.W.2d ...


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