from the District Court of Burleigh County, South Central
Judicial District, the Honorable Bruce A. Romanick, Judge.
K. Steiner, Assistant State's Attorney, Bismarck, N.D.,
for plaintiff and appellant.
N. Quick, Bismarck, N.D., for defendant and appellee.
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
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
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
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.
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
5] The State argues the district court erred by finding