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City of Bismarck v. Weisz

Supreme Court of North Dakota

February 22, 2018

City of Bismarck, Plaintiff and Appellee
v.
Donald Leo Weisz, Defendant and Appellant

         Appeal from the District Court of Burleigh County, South Central Judicial District, the Honorable Thomas J. Schneider, Judge.

          Melanie P. Dornonville de la Cour, Bismarck, N.D., for plaintiff and appellee.

          Chad R. McCabe, Bismarck, N.D., for defendant and appellant.

          OPINION

          Tufte, Justice.

         [¶ 1] Donald Weisz appeals from the district court's criminal judgment and the order denying his motion to suppress. We affirm, concluding there was sufficient competent evidence of probable cause to arrest Weisz for being in actual physical control of a vehicle while under the influence of intoxicating liquor.

         I

         [¶ 2] In January 2017, Officers Taylor Roman and Luke Kern were called to the scene of an accident. Upon arriving, Officer Roman saw a vehicle, which had crashed into a Capital Electric box, in the ditch along with fresh tire tracks in the snow, leading off the road. The vehicle's license plate read "WEISZ02, " and by entering this plate into the officers' vehicle registration system, Officer Roman identified Weisz as the owner of the vehicle and discovered Weisz's address was on a nearby cross street.

         [¶ 3] The officers did not see anyone in the vehicle, but Officer Kern saw footprints leading away from the driver's side of the vehicle. The vehicle was unlocked. Officer Roman did not find any keys in the vehicle. The officers saw an individual walking downhill toward the vehicle. That individual stumbled and tripped over himself as he approached the vehicle. Officer Kern testified that he saw this person fall down. The individual identified himself as Weisz. The officers noted that Weisz smelled of alcohol, his speech was slurred, he had poor balance, and his eyes were bloodshot.

         [¶ 4] Weisz stated he was traveling from the East 40, a restaurant and bar about 1.5 miles away from the accident. Officer Kern testified that Weisz stated, "I came from East 40, " as opposed to "we." The officers testified it was a cold night, and Weisz's walking direction was not consistent with having walked from the East 40. Weisz was arrested for being in actual physical control of a vehicle while intoxicated. He moved to suppress evidence, and the district court denied his motion. Weisz entered a conditional plea of guilty.

         II

         [¶ 5] Weisz argues that because the City of Bismarck lacked probable cause to arrest him, the district court erred by denying his motion to suppress.

When reviewing a district court's ruling on a motion to suppress, we defer to the district court's findings of fact and resolve conflicts in testimony in favor of affirmance. We affirm the district court's decision unless, after resolving conflicting evidence in favor of affirmance, we conclude there is insufficient competent evidence to support the decision, or unless the decision goes against the manifest weight of the evidence. Questions of law are fully reviewable.

State v. Haverluk, 2000 ND 178, ¶ 7, 617 N.W.2d 652 (citations omitted).

         [¶ 6] An officer may arrest a person without a warrant "[o]n a charge, made upon reasonable cause, of driving or being in actual physical control of a vehicle while under the influence of alcoholic beverages." N.D.C.C. § 29-06-15(1)(f). Reasonable cause is synonymous with probable cause. State v. Hensel, 417 N.W.2d 849, 852 (N.D. 1988). "To establish probable cause, it is not necessary that the officer possess knowledge of facts sufficient to establish guilt; all that is necessary is knowledge that would furnish a prudent person with reasonable grounds for believing a violation has occurred." Id. In evaluating ...


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