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State v. Fleckenstein

Supreme Court of North Dakota

February 22, 2018

State of North Dakota, Plaintiff and Appellant
v.
Tyler Ross Fleckenstein, Defendant and Appellee

         Appeal from the District Court of Burleigh County, South Central Judicial District, the Honorable Bruce A. Romanick, Judge.

          Derek K. Steiner, Assistant State's Attorney, Bismarck, N.D., for plaintiff and appellant.

          Robert N. Quick, Bismarck, N.D., for defendant and appellee.

          OPINION

          Court by Tufte, Justice.

         [¶ 1] The State appeals from a district court order granting Tyler Fleckenstein's motion to suppress. Because the district court misapplied the law by ruling Fleckenstein's consent to a blood test was per se involuntary and thus did not consider the totality of the circumstances, we reverse the district court's order and remand for additional findings of fact and a determination of voluntariness on the basis of the totality of the circumstances.

         I

         [¶ 2] In March 2017, Deputy Sheriff Dustin Braun stopped Fleckenstein after his vehicle touched the center line. Deputy Braun testified that Fleckenstein had bloodshot eyes and admitted to consuming "a few beers." Fleckenstein performed the Horizontal Gaze Nystagmus test, the Walk and Turn, and the One-Leg Stand. After the field sobriety tests, Deputy Braun read Fleckenstein the implied consent advisory for a breath-screening test. Fleckenstein consented to the preliminary breath test, which indicated his blood alcohol content was above the legal limit. Deputy Braun arrested Fleckenstein and read him the Miranda warning. He then read him the following implied consent advisory for a chemical test:

As a condition of operating a motor vehicle on a highway or in a public or private area to which the public has a right of access to, you have consented to taking a test to determine whether [you are under] the influence of alcohol or drugs. I must also inform you North Dakota law requires you to take a chemical test to determine if you're under the influence of alcohol or drugs. Refusal to take a test directed by a law enforcement officer may result in revocation of your license--driver's license for a minimum of 180 days and potentially up to three years.

         (Emphasis added.) Deputy Braun testified that he re-read the following portion of the advisory: "North Dakota law requires you to submit to a chemical test to determine if you're under the influence of alcohol or drugs." Deputy Braun then asked Fleckenstein if he would consent to a blood test, and Fleckenstein consented.

         [¶ 3] Fleckenstein was charged with driving under the influence of alcohol (third offense). Fleckenstein moved to suppress the blood test. At the motion hearing, only Deputy Braun testified. The district court concluded that the consent to the blood test was involuntary and granted the motion to suppress the blood test. The State appealed, filing a statement of the prosecuting attorney.

         II

         [¶ 4] " Section 29-28-07, N.D.C.C., strictly limits the prosecution's right to appeal in a criminal case." State v. Boehm, 2014 ND 154, ¶ 6, 849 N.W.2d 239. "The State may appeal from an order suppressing evidence if the appeal is 'accompanied by a statement of the prosecuting attorney asserting that the appeal is not taken for purpose of delay and that the evidence is [a] substantial proof of a fact material in the proceeding.'" Id. (quoting N.D.C.C. § 29-28-07(5)). The record reflects the State filed a notice of appeal and a statement of the prosecuting attorney. The statement of the prosecuting attorney asserts that the appeal was not taken for purposes of delay and that the evidence suppressed was "substantial proof of a fact material to the prosecution of the... Driving Under the Influence" charge. The State complied with the requirements of N.D.C.C. § 29-28-07(5), and "a review of the facts clearly demonstrates the relevance of the evidence suppressed." Boehm, at ¶ 6 (quoting State v. Emil, 2010 ND 117, ¶ 6, 784 N.W.2d 137). Thus, the State may appeal.

         III

         [¶ 5] The State argues the district court erred by finding ...


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