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