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State v. O'Connor

Supreme Court of North Dakota

March 28, 2016

State of North Dakota, Plaintiff and Appellant
v.
Blaise M. O'Connor, Defendant and Appellee

          Appeal from the District Court of Cass County, East Central Judicial District, the Honorable Steven L. Marquart, Judge.

         Cherie L. Clark (argued), Assistant State's Attorney and Reid A. Brady (appeared), Assistant State's Attorney, Fargo, N.D., for plaintiff and appellant.

         Mark A. Friese (argued) and Bruce D. Quick (on brief), Fargo, N.D., for defendant and appellee.

         Daniel J. Crothers, Lisa Fair McEvers, Dale V. Sandstrom, Jerod E. Tufte, D.J. Opinion of the Court by Crothers, Justice. VandeWalle, Chief Justice, concurring specially.

          OPINION

Page 313

          Daniel J. Crothers, Justice.

          [¶1] The State appeals from an order suppressing the result of an Intoxilyzer chemical test in its prosecution of Blaise O'Connor for driving under the influence of alcohol. We affirm the suppression order because the law enforcement officer after placing O'Connor under arrest did not inform him of the complete implied consent advisory before administering the Intoxilyzer test.

         I

          [¶2] On May 24, 2015, a highway patrol officer stopped O'Connor's vehicle for a defective taillight. The officer observed O'Connor had slurred speech and bloodshot and watery eyes. O'Connor admitted he consumed some alcohol. The officer administered field sobriety tests, recited a complete implied consent advisory and asked O'Connor if he would submit to an onsite screening test. The State contended O'Connor was read the implied consent advisory contained in N.D.C.C. § 39-20-01(3)(a), relating to chemical tests, which includes the warning that " refusal to take the test . . . is a crime punishable in the same manner as driving under the influence." O'Connor contended he was given the implied consent advisory contained in N.D.C.C. § 39-20-14(3), relating to screening tests, which includes the warning that " refusal to take the screening test is a crime." O'Connor submitted to the onsite screening test which revealed a blood alcohol level above the presumptive limit.

          [¶3] The officer placed O'Connor under arrest for driving under the influence of alcohol and drove him to the Cass County Jail. At the jail, the officer asked O'Connor whether he remembered the implied consent advisory previously read to him and O'Connor responded, " yeah, I think so." It is undisputed that before O'Connor submitted to the Intoxilyzer chemical test the officer provided him with a partial implied consent advisory which failed to inform him that refusal to take a chemical test " is a crime punishable in the same manner as driving under the influence." N.D.C.C. § 39-20-01(3)(a). The chemical test revealed a blood alcohol level above the presumptive limit.

          [¶4] O'Connor moved to suppress the result of the Intoxilyzer chemical test because the officer failed to provide him with the complete implied consent advisory after he was arrested and before he submitted to the chemical test. The district court agreed with O'Connor and suppressed the result of the chemical test, concluding:

" [A] plain language reading of the statutes does not allow the implied consent advisory for screening tests under § 39-20-14

Page 314

to be a substitute for the implied consent advisory for chemical tests under § 39-20-01. As a result, [the officer] failed to provide the Defendant with a proper and complete implied consent advisory after arrest and before conducting the Intoxilyzer chemical tests. Pursuant to § 39-20-01(3)(b), the Defendant's Intoxilyzer ...

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