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City of Grand Forks v. Opp

Supreme Court of North Dakota

March 7, 2017

City of Grand Forks, Plaintiff and Appellee
v.
Fritz Thomas Opp, Defendant and Appellant

         Appeal from the District Court of Grand Forks County, Northeast Central Judicial District, the Honorable Jon J. Jensen, Judge.

         AFFIRMED.

          Kristi Pettit Venhuizen, for plaintiff and appellee.

          DeWayne A. Johnston, for defendant and appellant.

          CROTHERS, JUSTICE.

         [¶ 1] Fritz Opp appeals from the district court's order denying his motion to suppress evidence and dismiss the charges, the judgment entered after a jury found him guilty of refusing to submit to chemical testing and the district court's order denying his motion for a new trial. Opp argues his Fourth and Fifth Amendment rights were violated and the district court erred in consolidating his two charges into one trial. We affirm.

         I

         [¶ 2] Opp was stopped for speeding by a Grand Forks police officer in the early morning hours of October 30, 2015. The officer testified he observed Opp's eyes were red, watery and bloodshot, Opp had a delayed reaction during questioning and admitted to drinking that night. The officer asked Opp to step out of his vehicle and perform field sobriety tests. Opp responded that he would do what was required by law. The officer proceeded with field sobriety testing. The officer administered the horizontal gaze nystagmus test, observing six out of six clues. The officer then administered the partial alphabet test, the full alphabet test and asked Opp to perform a backwards number count. Opp took an onsite screening test. Because the testifying officer was not certified to administer the onsite screening test an assisting officer arrived and administered the test. Following the tests Opp was arrested for driving under the influence.

         [¶ 3] The officer testified he read Opp the implied consent advisory and requested Opp submit to an intoxilyzer chemical breath test. According to the officer Opp's response was "no." The officer renewed his request after Opp questioned him about the breath test. The officer testified he asked Opp multiple times to take the intoxilyzer test and Opp never agreed to take it. The officer charged Opp with refusing to submit to chemical testing.

         [¶ 4] Opp filed a motion to suppress evidence and dismiss the charges. The district court entered an order denying Opp's motion to suppress evidence and dismiss the charges. One jury trial was held on both charges. The jury found Opp guilty of refusing to submit to a chemical test and not guilty of driving under the influence. Opp filed a motion for a new trial, arguing he was entitled to separate trials for each of the charges. The district court entered an order denying Opp's motion for a new trial. Opp appeals.

         II

         [¶ 5] Opp argues his Fourth and Fifth Amendment rights were violated when the officer had him perform field sobriety tests after telling the officer he would only do what was required by the law. The City of Grand Forks contends Opp is barred from raising these issues on appeal because they were not properly preserved in his motion for a new trial.

         [¶ 6] Under N.D.R.Crim.P. 33(a), a defendant moving for a new trial "must specify the alleged defects and errors with particularity." "A defendant is required to assert all alleged errors in a motion for new trial." State v. Middleton, 2012 ND 181, ¶ 5, 820 N.W.2d 738 (citing State v. Jordheim, 508 N.W.2d 878, 880 -81 (N.D. 1993)). "A motion for a new trial is not necessary for appellate review, but if a defendant moves for a new trial he is limited on appeal to the grounds presented to the district court in the motion." Id. (citations omitted).

         [¶ 7] Opp is limited on appeal to the issues he raised in his motion for a new trial. In Opp's motion he argued he was entitled to separate trials for each of the charges. Opp did not ...


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