from the District Court of Burleigh County, South Central
Judicial District, the Honorable Cynthia Feland, Judge.
K. Steiner, Assistant State's Attorney, Bismarck, ND, for
plaintiff and appellee.
R. McCabe, Bismarck, ND, for defendant and appellant.
1] Shawn Alvah Montgomery appeals from a criminal judgment
entered after his conditional guilty plea to a charge of
driving under the influence. Montgomery argues the State
violated his Fourth Amendment right to be free from an
unreasonable search by compelling his consent to a blood
test. We affirm, concluding the district court did not err in
denying Montgomery's motion to suppress.
2] On October 1, 2016, Sergeant Michael Stoltz stopped
Montgomery's vehicle for speeding. Sergeant Stoltz
noticed signs of inebriation, conducted field tests, read the
statutory implied consent advisory,  and administered an
onsite screening test. Sergeant Stoltz placed Montgomery
under arrest after the test indicated Montgomery was above
the legal limit. Sergeant Stoltz then read Montgomery his
Miranda rights and the statutory implied consent
advisory a second time. Sergeant Stoltz did not read the
criminal penalties portion of the advisory at first, but read
it to Montgomery the second time. Montgomery requested a
blood test before Sergeant Stoltz reached the end of the
advisory to ask for consent to a chemical test. Montgomery
later recalled feeling "intimidated, " and
testified he would have taken a breath test instead of a
3] On October 1, 2016, the State charged Montgomery with
driving under the influence of alcohol in violation of
N.D.C.C. § 39-08-01. Montgomery filed a motion to
suppress, and the district court held a suppression hearing
on January 30, 2017. At the suppression hearing the district
court heard testimony from both Sergeant Stoltz and
Montgomery as well as listened to the audio recording of the
arrest. The district court noted an extended dialogue between
Sergeant Stoltz and Montgomery, leaving Montgomery ample
opportunity to ask questions before he volunteered to take a
blood test. The district court denied the motion to suppress
after finding Montgomery gave voluntary consent. Montgomery
signed a conditional guilty plea on April 19, 2017, which was
filed on April 25, 2017.
4] Our standard of review for a trial court's ruling on a
motion to suppress is well-established:
"The trial court's disposition of a motion to
suppress will not be reversed if, after conflicts in the
testimony are resolved in favor of affirmance, there is
sufficient competent evidence fairly capable of supporting
the trial court's findings, and the decision is not
contrary to the manifest weight of the evidence. That
standard of review recognizes the importance of the trial
court's opportunity to observe the witnesses and assess
their credibility, and we 'accord great deference to its
decision in suppression matters.'"
State v. Bjornson, 531 N.W.2d 315, 317 (N.D. 1995)
(citations omitted) (quoting State v. Brown, 509
N.W.2d 69, 71 (N.D. 1993)). "Whether findings of fact
meet a legal standard is a question of law. While we do not
conduct a de novo review of the findings of fact, questions
of law are fully reviewable." State v. Kitchen,
1997 ND 241, ¶ 12, 572 N.W.2d 106 (citations omitted).
Thus, we review whether sufficient competent evidence
supported the district court's finding of voluntary
consent, whether the district court correctly applied the law
in its findings, and whether denial of Montgomery's
motion to suppress was contrary to the manifest weight of the
evidence. See Kitchen, at ¶¶ 11 73;12;
Bjornson, at 317.
5] A blood test is a search for purposes of the Fourth
Amendment. Birchfield v. North Dakota, 136 S.Ct.
2160, 2178 (2016); State v. Boehm, 2014 ND 154,
¶ 18, 849 N.W.2d 239. A warrantless search is
presumptively unreasonable, but an exception to the warrant
requirement may render a warrantless search reasonable.
State v. Torkelsen, 2008 ND 141, ¶ 21, 752
N.W.2d 640. Consent is one such exception, provided the
consent is voluntary. Id. The State bears the burden
of showing voluntariness. Id. "[M]otorists
cannot be deemed to have consented to submit to a blood test
on pain of committing a criminal offense."
Birchfield, at 2186. "The totality of the
circumstances must be examined to determine voluntariness.
The inquiry focuses on two non-determinative elements: (1)
the characteristics and conditions of the accused at the time
of the confession, including the age, sex, race, education
level, physical or mental condition, and prior experience
with police; and (2) the details of the setting in which the
confession was obtained, including the duration and
conditions of detention, police attitude toward the
defendant, and the diverse pressures that sap the
accused's powers of resistance or self-control."
State v. Syvertson, 1999 ND 134, ¶ 20, 597
N.W.2d 652 (citations omitted). "Because the district
court is in a superior position to judge credibility and
weight, we show great deference to the court's
determination of voluntariness." State v.
Torkelsen, 2008 ND 141, ¶ 21, 752 N.W.2d 640
(quotation marks omitted) (quoting State v. Genre,
2006 ND 77, ¶ 30, 712 N.W.2d 624).
6] Montgomery argues the district court should have
suppressed the blood test results because the State did not
meet its burden of proving voluntary consent. Montgomery
equates his situation to Hawkins, in which this
Court upheld a motion to suppress blood test results.
State v. Hawkins, 2017 ND 172, ¶ 10, 898 N.W.2d
446 (affirming the district court's finding of
involuntary consent under the totality of the circumstances).
In Hawkins, the defendant refused the onsite
screening test after receiving an implied consent advisory,
then asked to take a blood test before the officer could
complete a second advisory. Id. at ¶ 2. At a
subsequent suppression hearing the district court heard
testimony from the arresting officer and reviewed dash cam
footage. Id. at ¶ 3. The district court in