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State v. Ruden

Supreme Court of North Dakota

July 31, 2017

State of North Dakota, Plaintiff and Appellee
v.
Christian Von Ruden, Defendant and Appellant

         Appeal from the District Court of Mercer County, South Central Judicial District, the Honorable David E. Reich, Judge.

          Jessica J. Binder, Assistant State's Attorney, Stanton, N.D., for plaintiff and appellee.

          Danny L. Herbel, Bismarck, N.D., for defendant and appellant.

          OPINION

          McEvers, Justice.

         [¶ 1] Christian Von Ruden appeals a criminal judgment convicting him of driving under the influence after entering a conditional guilty plea. Von Ruden argues evidence of the breath test records and checklists should be excluded because Officer Newman did not administer the test sequences in accordance with the approved method, and Officer Newman deprived him of his limited statutory right to counsel. We conclude Officer Newman scrupulously followed the approved method in administering the second breath test sequence and Von Ruden was not denied his limited statutory right to counsel. We therefore affirm.

         I

         [¶ 2] On March 15, 2016, the State charged Von Ruden with driving a motor vehicle while under the influence of intoxicating liquor under N.D.C.C. § 39-08-01. Von Ruden moved to suppress evidence of the breath test records and checklists and requested an evidentiary hearing. Von Ruden argued Officer Newman did not follow the approved method in administering the breath tests.

         [¶ 3] The parties subsequently waived an evidentiary hearing and agreed to have the district court rule based on a stipulated record. The court initially entered an order suppressing the evidence indicating the booking video from jail was not submitted by the State. The court relied only on evidence provided by Von Ruden. The court found there was no showing by the State that allowing Von Ruden to contact his attorney would have materially interfered with the test. The State moved for reconsideration arguing the booking video was already in evidence. In reconsidering, the court noted the following undisputed facts:

On March 15, 2016, at approximately 8:28 p.m. Beulah police officer Ben Newman made a traffic stop of Von Ruden's vehicle. Officer Newman read the implied consent advisory to Von Ruden and administered a preliminary breath test. Von Ruden was subsequently arrested for DUI and transported to the detention center in Stanton, ND. Von Ruden was again read the implied consent advisory. Although Officer Newman had to ask Von Ruden a number of times whether he would submit to a chemical test, Von Ruden eventually gave an affirmative reply.
The first test sequence was begun at 9:22 p.m. Von Ruden provided [a] deficient sample and Officer Newman decided to not give the second portion of the test. After halting the first test, Officer Newman began a second testing procedure at 9:41 p.m. In between the first and second blows on the second testing sequence, Von Ruden stated that he wanted his phone to call an attorney. Officer Newman told him that he could call his attorney after the test was completed. The test was completed and indicated that Von Ruden had a BAC of.198.

         Based on these facts, the district court granted the State's request for reconsideration, reversed its prior decision, and denied Von Ruden's motion to suppress. Von Ruden subsequently entered a conditional guilty plea to the charge of driving a motor vehicle while under the influence of intoxicating liquor.

         II

         [¶ 4] Von Ruden argues Officer Newman did not administer either Intoxilyzer breath test sequence in accordance with the approved method. He argues by manually aborting the first test sequence after receiving a deficient sample, Officer Newman denied him the opportunity to provide a second sample during the first test sequence. Von Ruden also argues Officer Newman did not follow the approved method when he failed to wait twenty minutes in between the first and the second test sequences. Therefore, Von Ruden contends the results from both test sequences should be excluded from evidence.

         [¶ 5] "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.'" City of Dickinson v. Schank, 2017 ND 81, ¶ 6, 892 N.W.2d 593 (quoting 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 ...


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