from the District Court of Stark County, Southwest Judicial
District, the Honorable Dann E. Greenwood, Judge.
upon remand from the United States Supreme Court.
County State's Attorney's Office, for plaintiff and
F. Murtha IV, for defendant and appellant.
1] A Stark County deputy sheriff stopped Kyle Baxter's
vehicle after observing the vehicle with frost on the
windshield weaving, being driven in the opposite lane of
traffic, and almost hitting the curb. The deputy noticed a
very strong odor of alcohol on Baxter and that he was
lethargic and slow to respond to questions. After Baxter
failed a field sobriety test, the officer read Baxter the
implied consent advisory and asked him to take an onsite
screening breath test. Baxter refused. The deputy placed
Baxter under arrest, took him to the law enforcement center,
again read him the implied consent advisory, and asked him to
take a chemical breath test. Baxter again refused.
2] Baxter was charged with refusing to submit to an onsite
screening or chemical test in violation of N.D.C.C. §
39-08-01(1)(e). Baxter moved to suppress evidence, arguing
the criminal refusal statutes violated his rights under the
State and Federal Constitutions. The district court rejected
Baxter's arguments and denied the motion. Baxter
conditionally pled guilty under N.D.R.Crim.P. 11(a)(2),
reserving the right to appeal the court's order denying
his motion to suppress.
3] In State v. Baxter, 2015 ND 107, ¶ 6, 863
N.W.2d 208, we recognized State v. Birchfield, 2015
ND 6, 858 N.W.2d 302, dealt with criminal refusal statutes
relating to chemical tests administered after placing the
individual under arrest. We said Baxter refused both the
onsite screening breath test and the chemical breath test and
the criminal judgment indicated he pled guilty to refusal of
the onsite screening or chemical test. Baxter, at
¶ 6. We construed N.D.C.C. § 39-20-14(1) to require
reasonable suspicion of driving under the influence before a
law enforcement officer may request a driver to submit to an
onsite screening test. Baxter, at ¶ 10. We
affirmed Baxter's conviction, concluding:
Here, the record clearly establishes that the deputy had
reasonable suspicion, if not probable cause, to believe
Baxter was driving under the influence of alcohol. Because a
limited Terry search based on reasonable suspicion
is constitutionally permissible, see, e.g.,
State v. Parizek, 2004 ND 78, ¶ 17, 678 N.W.2d
154, the deputy's request that Baxter submit to an onsite
screening test did not run afoul of the Fourth Amendment.
Baxter was not forced to submit to the onsite screening test.
Rather, he took advantage of the statutory right to refuse
the test, and no test was given. As in Beylund [v.
Levi], 2015 ND 18, ¶ 24, 859 N.W.2d 403, and in
Birchfield, 2015 ND 6, ¶ 15, 858 N.W.2d 302,
Baxter points to nothing in the implied consent laws that
would require him to submit to an onsite screening test in
violation of the Fourth Amendment. Furthermore, the same
reasonableness analysis we employed in Beylund, at
¶¶ 23-29, and Birchfield, at ¶ 5, is
equally applicable to criminalizing the refusal to submit to
an onsite screening test.
Based on our holdings in Birchfield and
Beylund, we conclude Baxter's rights under the
Fourth Amendment and N.D. Const. art. I, § 8, and the
unconstitutional conditions doctrine, were not violated in
Baxter, at ¶¶ 11-12.
4] In Birchfield v. North Dakota, 136 S.Ct. 2160,
2184-85 (2016), the United States Supreme Court held the
Fourth Amendment permits warrantless breath tests incident to
a lawful arrest for drunk driving, but absent another
exception to the warrant requirement, does not permit
warrantless blood tests incident to a lawful arrest for drunk
driving. The United States Supreme Court concluded that in
Birchfield's prosecution for refusing a warrantless blood
test incident to his arrest, the refused blood test was not
justified as a search incident to his arrest and reversed his
conviction because he was threatened with an unlawful search.
Id. at 2186.
5] The United States Supreme Court granted Baxter's
petition for writ of certiorari and remanded to this Court
for further consideration in light of Birchfield v. North
Dakota. We vacate our opinion affirming Baxter's
conviction to the extent it is inconsistent with
Birchfield v. North Dakota, and we remand to the
district court to allow Baxter to withdraw his guilty plea.
Because Baxter's conviction involved refusal of a
pre-arrest breath test, which was not analyzed within the
holding in Birchfield v. North Dakota, we conclude
further proceedings in the district court are necessary to
develop this issue.
6] Gerald W.VandeWalle, C.J., Lisa Fair McEvers, Daniel J.
Crothers, Dale ...