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City of Bismarck v. Sokalski

Supreme Court of North Dakota

May 26, 2016

City of Bismarck, Plaintiff and Appellee
v.
Barbara Sokalski, Defendant and Appellant

          Appeal from the District Court of Burleigh County, South Central Judicial District, the Honorable Sonna M. Anderson, Judge.

         Jason J. Hammes, Assistant City Attorney, Bismarck, N.D., for plaintiff and appellee.

         Michael R. Hoffman, Bismarck, N.D., for defendant and appellant.

         Carol Ronning Kapsner, Lisa Fair McEvers, Daniel J. Crothers, Dale V. Sandstrom, Gerald W. VandeWalle, C.J.

          OPINION

Page 89

         Carol Ronning Kapsner, Justice.

          [¶1] Barbara Sokalski appeals from a judgment entered after a jury convicted her of driving a vehicle under the influence of alcohol. We conclude the district court did not abuse its discretion in denying Sokalski's new trial motion because she failed to establish the City's prosecution had presented false testimony and a " false case" against her. We affirm.

         I

          [¶2] On May 12, 2014, at about 1:30 a.m., Bismarck Police Officer Paul Olson was northbound in his patrol vehicle on State Street, near Wal-Mart in north Bismarck, which is a four-lane roadway with a ditch dividing the north- and southbound lanes. While driving, Olson observed multiple vehicles in front of him swerve to the right and pull over to avoid another vehicle that was driving southbound straight into oncoming traffic. Olson pulled to the side of the road and activated his squad car's lights. The vehicle passed him, and Olson did a u-turn and pulled the vehicle over.

          [¶3] After stopping the vehicle, Olson approached and made contact with the driver. He immediately observed a strong odor of alcohol. The driver was unable to locate her driver's license and handed him a different card with her name on it. Olson identified the driver as Sokalski. While speaking with Sokalski, he noticed she had a " stupor" look about her and difficulty speaking. Olson asked her to exit her vehicle and follow him off the roadway due to safety concerns. Sokalski, instead, walked back onto the roadway and attempted to walk on the line on the side of the road, although he had not instructed Sokalski to do any tests or actions at this point. Olson also testified at trial that

Page 90

Sokalski attempted to touch her nose with her fingers multiple times and stated, " [S]ee[,] I'm not intoxicated."

          [¶4] Olson observed her having difficulty maintaining her balance while she walked down the line and conducted a horizontal gaze nystagmus (HGN) test, which she failed. Believing her to be under the influence of alcohol, he did not conduct any further roadside tests due to safety issues. Olson testified Sokalski admitted she was coming from a tavern and he believed she was " heavily intoxicated" based on his twenty years of training and experience. Olson arrested Sokalski for driving under the influence. Olson testified at trial that he read her the implied consent advisory, he requested that she take a chemical test, and she refused. Bismarck Police Officer Josh Brown transported her to the Burleigh County Detention Center. Olson testified he informed Brown that Sokalski refused to submit to a chemical test.

          [¶5] The City charged Sokalski with driving under the influence of alcohol or drugs and with refusal to submit to a chemical test. She pleaded not guilty to the charges in Bismarck municipal court. Sokalski requested her case be transferred from municipal court to the district court for a jury trial. In August 2014, Sokalski made several pre-trial motions in the district court, including motions requesting the court to suppress all evidence of her alleged refusal to take the blood test, to exclude evidence of HGN ...


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