from the District Court of Richland County, Southeast
Judicial District, the Honorable Bradley A. Cruff, Judge.
W. Moen, Assistant State's Attorney, Wahpeton, North
Dakota, for plaintiff and appellee.
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
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
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