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State v. Rende

Supreme Court of North Dakota

January 24, 2018

State of North Dakota, Plaintiff and Appellee
Laura Rende, Defendant and Appellant

         Appeal from the District Court of McKenzie County, Northwest Judicial District, the Honorable Daniel S. El-Dweek, Judge.

          Stephenie L. Davis, Assistant State's Attorney, Watford City, ND, for plaintiff and appellee; submitted on brief.

          Scott O. Diamond, Fargo, ND, for defendant and appellant.


          Jensen, Justice.

         [¶ 1] Laura Rende appealed from a criminal judgment after a jury found her guilty of driving while under the influence of alcohol. We reverse the criminal judgment and remand this case for a new trial. The disclosure of a preliminary breath test result during Rende's trial violated the legislative directive contained in N.D.C.C. § 39-20-14(3), was not harmless error, and required the granting of Rende's request for a mistrial.


         [¶ 2] In June 2016, Rende was stopped by North Dakota Highway Patrol Trooper Preston Langer for speeding. During the stop, Langer suspected Rende may have been driving under the influence of alcohol and requested Rende submit to a number of field sobriety tests. She failed the horizontal gaze nystagmus test, alphabet test, walk and turn test, and one-legged stand test. Langer subsequently requested Rende submit to a preliminary breath test. Rende consented to the preliminary breath test, which indicated an alcohol concentration result of 0.149 percent. Rende was thereafter placed under arrest for driving under the influence.

         [¶ 3] After placing Rende under arrest, Langer asked Rende if she would submit to a blood test. Rende questioned Langer as to why she needed to submit to another test when she had already taken a breath test and performed field sobriety tests. Rende apparently did not understand the distinction between the preliminary breath test, which can only be used for the purpose of determining probable cause for the arrest, and a subsequent blood alcohol concentration test. During their argument about why the additional test was necessary, Rende stated, "1.4, I am really fucking drunk, used to be 1.0, one beer and a Jager bomb." Rende's interaction with Langer, the field sobriety tests, and the preliminary breath test, were all recorded on video.

         [¶ 4] The State offered the video from the traffic stop as evidence at trial. The parties stipulated to editing the video to remove Langer's administration of the preliminary breath test. Apparently, without discussion or agreement, the exchange between Langer and Rende regarding why she needed to take another test, which included her statement about the preliminary breath test result, was played to the jury. Rende objected and moved for a mistrial. The district court reserved ruling on the motion for a mistrial, but ultimately denied the motion concluding it was harmless error in light of the subsequent blood test indicating Rende had a blood alcohol concentration of 0.156 percent.


         [¶ 5] Motions for mistrial are within the district court's broad discretion and will not be reversed on appeal unless the court clearly abused its discretion or a manifest injustice would occur. State v. Lang, 2015 ND 181, ¶ 10, 865 N.W.2d 401. A district court abuses its discretion when it misinterprets or misapplies the law, or when it acts in an arbitrary, unreasonable, or capricious manner. Id. Granting a mistrial is an extreme remedy which should be resorted to only when there is a fundamental defect or occurrence in the proceedings that makes it clear that further proceedings would be productive of manifest injustice. Id.

         [¶ 6] This Court has recognized that pursuant to N.D.C.C. § 39-20-14(3), the results of preliminary breath tests are to be excluded from evidence unless probable cause for the arrest is being challenged. Barrios-Flores v. Levi, 2017 ND 117, ¶ 12, 894 N.W.2d 888; City of Fargo v. Erickson, 1999 ND 145, ¶ 10, 598 N.W.2d 787; State v. Schimmel, 409 N.W.2d 335, 339 (N.D. 1987). The trial did not include a challenge to probable cause, and the preliminary test result should have been excluded.

         [¶ 7] The district court recognized that the result of the preliminary breath test should not have been admitted but concluded that the error was harmless. If an error occurs during a trial, we review its effect under N.D.R.Crim.P. 52 and decide "whether the error was so prejudicial that substantial injury occurred and a different decision would have resulted without the error." Schimmel, 409 N.W.2d at 339. Under N.D.R.Crim.P. 52, an error is either harmless or obvious. A harmless error does not affect a defendant's substantial rights and must be disregarded. N.D.R.Crim.P. 52(a). An obvious error affects a defendant's substantial rights and is grounds for reversal. N.D.R.Crim.P. 52(b). To establish obvious error, a defendant must show error that is plain and affects substantial rights. State v. Steen, 2015 ND 66, ¶ 7, 860 N.W.2d 470. "In analyzing obvious error, our decisions require examination of the entire record and the probable effect of the alleged error in light of all the evidence." Id. (quoting State v. Olander, 1998 ND 50, ¶ 12, 575 N.W.2d 658).

         [¶ 8] In concluding the disclosure of Rende's statement to the jury was harmless error, the district court relied on the subsequent blood test result that indicated a blood alcohol concentration of 0.156 percent. The district court referenced our prior decision in Schimmel. The district court was correct that in Schimmel, we concluded that existence of two subsequent blood alcohol ...

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