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City of Dickinson v. Schank

Supreme Court of North Dakota

April 6, 2017

City of Dickinson, Plaintiff and Appellee
v.
Russell D. Schank, Defendant and Appellant

         Appeal from the District Court of Stark County, Southwest Judicial District, the Honorable James D. Gion, Judge. AFFIRMED.

          Christina M. Wenko, Assistant City Attorney, for plaintiff and appellee.

          Markus A. Powell, for defendant and appellant; submitted on brief.

          OPINION

          Kapsner, Justice.

         [¶ 1] Russell Schank appeals from a criminal judgment entered after entry of a conditional guilty plea to a charge of actual physical control of a motor vehicle in violation of N.D.C.C. § 39-08-01 after the district court's denial of his motion to suppress evidence. We affirm the criminal judgment, concluding the district court did not err by denying Schank's motion to suppress evidence.

         I

         [¶ 2] Schank was arrested for being in actual physical control of a motor vehicle in violation of N.D.C.C. § 39-08-01 on February 20, 2016. On the night of Schank's arrest, a Dickinson police officer observed a vehicle he believed was speeding, but lost sight of it after it crested a hill. The officer located the vehicle after searching the area for a short time and initiated a traffic stop. Once at the door of the vehicle, the officer recognized the driver was Russell Schank. After some conversation, the officer asked Schank to exit the vehicle because he suspected Schank had been drinking alcohol. The officer administered a preliminary breath test after giving Schank an implied consent advisory. The preliminary test showed an alcohol content over the legal limit. The officer arrested Schank for actual physical control of a motor vehicle while under the influence and transported him to the law enforcement center.

         [¶ 3] At the law enforcement center, Schank requested to speak with an attorney after being given the implied consent advisory. The officer brought Schank to an office that contained a working telephone. The officer testified there was another telephone in an interview room, but did not test the phone. However, the officer testified he had "horrendous luck with the phone in the interview room." The officer provided a phone book to Schank, stood in the hallway, and left the door open. According to the officer, the door was left open for him to monitor Schank to ensure nothing was placed in his mouth. Schank attempted to close the door to the office, but the officer did not allow it. At the suppression hearing, the officer indicated if the door was closed, he would have been locked out of the office. While Schank used the telephone, the officer stood at the doorway of the office, about six to eight feet away from Schank. In the hallway, the officer engaged in a conversation with another officer for at least part of the time Schank was inside the office. Standing in the hallway, the officer heard Schank ask the officer whether he (Schank) had taken a preliminary test. In response, the officer told Schank his preliminary test result. Schank then continued to speak on the telephone, completed his call, took the chemical test, and was allowed to post bond.

         [¶ 4] Schank filed a motion to suppress evidence based upon a violation of his limited statutory right to counsel. The district court held a hearing at which only the arresting officer testified. The court entered an order denying the motion on June 22, 2016. Schank entered a conditional guilty plea, and the district court entered a criminal judgment on July 8, 2016. Schank filed a notice of appeal on July 12, 2016.

         II

         [¶ 5] On appeal, Schank argues the district court erred by denying his motion to suppress evidence because the arresting officer violated his limited statutory right to counsel. The City of Dickinson ("the City") argues the district court properly denied the motion to suppress evidence because, under the totality of the circumstances, Schank was afforded a meaningful opportunity to consult with an attorney.

         [¶ 6] When reviewing a district court's decision on a motion to suppress, this Court defers to the district court's findings of fact, and conflicts in testimony are resolved in favor of affirmance, as we recognize the district court is in a "superior position to assess credibility of witnesses and weigh the evidence." State v. Gasal, 2015 ND 43, ¶ 6, 859 N.W.2d 914. "This Court will affirm a district court decision regarding a motion to suppress if there is sufficient competent evidence fairly capable of supporting the district court's findings, and the decision is not contrary to the manifest weight of the evidence." City of Devils Lake v. Grove, 2008 ND 155, ¶ 7, 755 N.W.2d 485.

         [¶ 7] This Court has previously outlined the jurisprudence regarding consultation with counsel prior to taking a chemical test:

An arrested person who asks to speak with an attorney before taking a chemical test must be given a reasonable opportunity to do so if it does not materially interfere with the test administration. Kuntz v. State Highway Comm'r, 405 N.W.2d 285, 290 (N.D. 1987). The reasonableness of the opportunity objectively depends on the totality of the circumstances, rather than the subjective beliefs of the accused or police. City of Mandan v. Jewett, 517 N.W.2d 640, 642 (N.D. 1994). The accused person's right of consultation with an attorney before submitting to a chemical test is a statutory right, not a constitutional right. Kuntz at 289; see also N.D.C.C. ยง 29-05-20 (providing that an attorney who requests to visit with the arrested ...

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