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State v. Corona

Supreme Court of North Dakota

August 28, 2018

State of North Dakota, Plaintiff and Appellant
v.
Crystal Lynn Corona, Defendant and Appellee

          Appeal from the District Court of McLean County, South Central Judicial District, the Honorable John W. Grinsteiner, Judge.

          Ladd R. Erickson, State's Attorney, Washburn, N.D., for plaintiff and appellant; submitted on brief.

          Chad R. McCabe, Bismarck, N.D., for defendant and appellee.

          OPINION

          TUFTE, JUSTICE.

         [¶ 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.

         I

         [¶ 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 intoxication.

         [¶ 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.

         II

         [¶ 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.

         Corona 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 ...


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