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State v. Taylor

Supreme Court of North Dakota

June 5, 2018

State of North Dakota, Plaintiff and Appellee
Joshua Ryan Taylor, Defendant and Appellant

          Appeal from the District Court of Richland County, Southeast Judicial District, the Honorable Bradley A. Cruff, Judge.

          Casey W. Moen, Assistant State's Attorney, Wahpeton, North Dakota, for plaintiff and appellee.

          Joshua R. Taylor, self-represented, Wahpeton, North Dakota, defendant and appellant.


          VandeWalle, Chief Justice.

         [¶ 1] Joshua Taylor appealed from a criminal judgment entered after a jury found him guilty of refusing to submit to a chemical test for intoxication. Taylor argues the district court erred in denying his requested jury instruction and his motion to dismiss. We affirm.


         [¶ 2] According to the arresting officer, in the early morning hours of February 16, 2017, he observed Taylor driving a vehicle that failed to stop at a stop sign. The officer testified he initiated a traffic stop that resulted in Taylor's refusal to submit to an onsite preliminary breath test and in a subsequent arrest and refusal to submit to an Intoxilyzer test at a law enforcement center. The State charged Taylor with refusal to submit to a chemical test under "NDCC/Ord. 39-08-01(E)."

         [¶ 3] Throughout these proceedings, Taylor has represented himself and has maintained that a video from the arresting officer's patrol vehicle would establish he stopped at the stop sign. This record does not include a written request for discovery by Taylor, but in his appellate brief he claims he requested the audio and video recordings from the state's attorney's office and was ultimately told the materials were unrecoverable. In response to a district court inquiry about the status of discovery at a pretrial dispositional conference, Taylor indicated "[i]t sounds like what I was waiting on is unrecoverable, " and he moved to dismiss the charge for "lack of evidence." He argued the arresting officer did not have a valid reason for the initial traffic stop and, as a result, the officer's subsequent requests for an onsite screening test and a chemical test were invalid.

         [¶ 4] The State responded that Taylor's argument referred to the fact that a video camera in the officer's patrol vehicle "wasn't operational" at the time of the stop, but the officer's testimony at trial would be sufficient evidence of driving under the influence and the basis for the stop. The State argued that "just because the video camera wasn't operational doesn't mean that the officer's word and his testimony isn't evidence." The district court denied Taylor's motion to dismiss.

         [¶ 5] Taylor thereafter requested a jury instruction under N.D.C.C. § 39-20-14(1), which authorizes a law enforcement officer to request an onsite screening test if the officer "has reason to believe that the individual committed a moving traffic violation... and in conjunction with the violation... the officer has, through the officer's observations, formulated an opinion that the individual's body contains alcohol." Immediately before the jury trial, the district court denied Taylor's requested jury instruction after an extensive colloquy:

MR. TAYLOR: Part of my purpose for 39-20-14 is specifically the requirement by the state for a moving violation for request of a breathalyzer or chemical test.
COURT: Ms. Kummer.
MS. KUMMER [Assistant State's Attorney]:... Mr. Taylor is charged with 39-08-01(e)(2) and that's part of North Dakota law provides that if he's found to have refused a chemical test after driving or being in actual physical control of a vehicle on a road or highway or a public right of access he must submit to a chemical test.
As the Court indicated, 39-20-14 is regarding the PBT [Preliminary Breath Test]. While he did refuse that as well, I think the State is intending to move forward with the prosecution of the crime of refusing it once he was actually arrested and transported back to the jail which would require only a showing that he operated a motor vehicle in Richland County. He failed to stop at a stop sign so I also don't know what the argument is going to be about whether there was a moving violation or not. Obviously, there was a violation of state law there as well. But I think that the proper jury instruction is what the State has actually charged him with and that is operating a motor vehicle on a public way and refusing to submit to a chemical test. I think that the Court's essential elements are correct.
MR. TAYLOR: To my understanding, your Honor, 39-20-14 doesn't cover a charge itself - it covers screening test. The point of 39-20-14(1) is that they have to have a moving violation to request the breathalyzer. I couldn't have ended up in Richland County Sheriff's Department for the chemical test during booking without an arrest. The arrest is for refusal on site chemical test. 39-20-14 requires a moving violation.
COURT: Well, your arrest, I assume, for suspected DUI. Was there actually an arrest Ms. Kummer?
MS. KUMMER: Right. Yep, and it was based on all the officer's observations, and including refusing the PBT.
MR. TAYLOR: That is the actual charge. Refusal to submit to an on site chemical test.
COURT: Well there's two and they often get interchanged and confused. There's a preliminary breath test - the PBT.... And that's one to determine if further testing is warranted. That's the on-site screening test out in the field. And if you flunk that then usually what they do is they arrest you and then they bring you to.. and that one's not admissible in court. So what they do is bring you, because it's just a screening test, so then they bring you to the Law Enforcement Center or if you consent you can go to the hospital and get a blood draw or you come here and you get a UA or do the Intoxilyzer.
MR. TAYLOR: But seeing as there wasn't a chemical test on site the arrest is for refusal on site. There is no other way around that if I don't refuse on site I don't get arrested for refusal. Under the law I'm considered to be under arrest as soon as an officer will not let me leave his presence. As soon as I am detained and not free to move.
COURT: Yeah. I don't know when the arrest took place in this. This is.. I know nothing about this case other than what ...

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