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City of Gwinner v. Vincent

Supreme Court of North Dakota

April 6, 2017

City of Gwinner, Plaintiff and Appellee
v.
Paul Vincent, Defendant and Appellant

         Appeal from the District Court of Sargent County, Southeast Judicial District, the Honorable Daniel D. Narum, Judge. AFFIRMED.

          Jeffrey K. Leadbetter, P.O. Box 511, Lisbon, ND 58054-0511, for plaintiff and appellee.

          Luke T. Heck, 4627 44th Ave. S., Ste. 108, Fargo, ND 58104, for defendant and appellant.

          OPINION

          McEvers, Justice.

         [¶ 1] Paul Vincent appeals from the district court's judgment entered on his conditional plea of guilty to the charge of driving under the influence of alcohol. We affirm, concluding the district court did not err in denying his motion to suppress evidence.

         I

         [¶ 2] On November 6, 2015, Sargent County Deputy Sheriff David Kozok arrested Paul Vincent for driving under the influence of alcohol after a blood test revealed Vincent's alcohol concentration exceeded the legal limits. In March 2016, Vincent moved to suppress any evidence related to the chemical test arguing, in part, that the deputy violated his limited statutory right to speak with an attorney before submitting to the chemical test. A hearing on the motion was held on April 14, 2016.

         [¶ 3] Testimony revealed that, on November 6, 2015, Deputy Kozok placed Vincent under arrest and took him to the Gwinner Fire Hall, where the deputy read Vincent the Miranda warning and the North Dakota Implied Consent Advisory. The deputy then asked Vincent if he would submit to a chemical test. Vincent did not answer the deputy's question. Instead, Vincent said "talk to my attorney." The deputy informed Vincent that he would take his silence as a refusal. The deputy then transported Vincent to the Richland County jail. On the way to jail, the deputy received a call from the Richland County Sheriff, who advised the deputy to read the implied consent advisory to Vincent again. The deputy pulled over on the side of the road and, again, read Vincent the implied consent advisory. After the deputy finished, Vincent again stated "talk to my attorney." The deputy testified he told Vincent if Vincent could "get a hold of an attorney" he would be able to talk to one. Vincent gave the deputy a phone number, but did not provide the deputy with the name of the attorney. The deputy testified that it appeared to be a local cell phone number. The deputy called the number using his personal cell phone, but there was no answer. Vincent was in the back seat of the patrol car when the deputy placed the call. After the deputy's failed attempt to call the number Vincent gave him, Vincent did not mention an attorney again and agreed to submit to a blood test. The deputy drove Vincent to the Lisbon Hospital where a blood test was taken revealing his alcohol concentration level exceeded the legal limits.

         [¶ 4] After considering the evidence and testimony presented, the district court denied Vincent's motion concluding he had not made an affirmative request to speak to an attorney:

It was not clear to [the deputy] and the court is not convinced that Vincent's recitations were an affirmative indication that Vincent needed an attorney, that he desired to talk to an attorney, or that he wanted to have an attorney present, prior to taking the chemical test. Vincent's responses were ambiguous, equivocal and did not constitute an affirmative or unambiguous request to exercise his right to consult an attorney prior to taking the chemical test. [The deputy] was not required to inquire further to clarify Vincent's intent, nor was he required to assume or presume Vincent wished to exercise his right to consult an attorney. Something more than the mere mention of an attorney is required to exercise one's right to speak with an attorney prior to submitting to a chemical test.
[ ] The court is satisfied that there was no affirmative request by Vincent to speak to an attorney before taking the chemical test.

         Thereafter, Vincent entered a conditional guilty plea reserving his right to appeal.

         [¶ 5] Vincent appeals, arguing the district court erred by denying his motion to suppress evidence. Specifically, Vincent argues the district court erred in finding his statements of "talk to my attorney" did not constitute an affirmative mention of a need for an attorney for the purposes of triggering the limited statutory right to a reasonable ...


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