from the District Court of McLean County, South Central
Judicial District, the Honorable John W. Grinsteiner, Judge.
R. Erickson, State's Attorney, Washburn, N.D., for
plaintiff and appellant; submitted on brief.
R. McCabe, Bismarck, N.D., for defendant and appellee.
1] The State appeals from a district court order denying the
State's pretrial motion to allow the introduction of
evidence at a jury trial about Crystal Corona's refusal
to submit to an onsite screening test for intoxication. We
conclude the State's appeal is not authorized by N.D.C.C.
§ 29-28-07(5), and we dismiss the appeal.
2] According to the State, a law enforcement officer stopped
a vehicle driven by Corona on October 19, 2017, after she
failed to dim her headlights. The officer thereafter detected
the odor of alcohol emanating from Corona, and she refused to
submit to an onsite screening test for intoxication and a
subsequent Intoxilyzer test. The State charged her with
driving under the influence for refusing a chemical test for
3] The State made a pretrial motion to allow the introduction
of evidence about Corona's refusal to submit to the
onsite screening test, arguing a 2017 amendment to N.D.C.C.
§ 39-20-14(3) authorized the admission of evidence of
the onsite refusal after she did not take any additional
chemical tests requested by a law enforcement officer. The
district court denied the State's motion, stating it
would not allow any evidence to be presented at trial
regarding the refusal of the preliminary breath test.
4] The State appeals from the order denying its pretrial
motion, arguing the district court erred in denying the
pretrial motion to allow the admission of evidence at trial
about Corona's refusal to submit to an onsite screening
test under a 2017 amendment to N.D.C.C. § 39-20-14(3).
5] Corona argues the State's appeal from the denial of
the pretrial motion is not authorized by N.D.C.C. §
29-28-07(5), which provides:
An order granting the return of property or suppressing
evidence, or suppressing a confession or admission, when
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. The statement must be filed with
the notice of appeal.
argues the State's motion and the court's order were
not based upon the "exclusion by virtue of
constitutional law" of illegally obtained evidence under
N.D.R.Crim.P. 12(b)(3) and this Court's interpretation
and application of N.D.C.C. § 29-28-07(5). See
City of Fargo v. Cossette, 512 N.W.2d 459 (N.D.
1994); State v. Miller, 512 N.W.2d 469 (N.D. 1994);
State v. Counts, 472 N.W.2d 756 (N.D. 1991);
State v. Miller, 391 N.W.2d 151 (N.D. 1986).
6] The State responds that Corona's argument
"harkens the Court back to its forgone standard for a
state appeal by arguing dated case law from an era when the
state's right to appeal was more constricted." The
State claims this Court has announced less restrictive
standards for a state appeal and now allows state appeals
from the exclusion of evidence if the state can show the
excluded evidence is critical for the state to prove material
facts at trial--such as a ...