from the District Court of Morton County, South Central
Judicial District, the Honorable James S. Hill, Judge.
Gunderson, Mandan, N.D., for plaintiff and appellee.
R. Loraas, Bismarck, N.D., for defendant and appellant.
1] Daniel Bohe appealed from a criminal judgment entered
after his conditional plea of guilty to a charge of driving
with a blood alcohol concentration of.08 or greater in
violation of N.D.C.C. § 39-08-01. Bohe argues that
because he was given an incomplete implied consent advisory,
the district court erred by failing to suppress evidence of
blood test results under N.D.C.C. § 39-20-01(3)(b). We
reverse the judgment and the district court's order
denying Bohe's motion to suppress the blood test
2] On December 3, 2016, the North Dakota National Guard set
up a checkpoint in Morton County to "maintain peace and
order, and to limit hardships and impacts caused by the
[Dakota Access Pipeline Protest] emergency." Daniel Bohe
drove up to the roadblock and stopped. After speaking with
Bohe, a National Guard service member informed Deputy Josh
Lloyd, who was parked behind the checkpoint, that Bohe
appeared to be under the influence of alcohol.
3] Upon approaching Bohe's vehicle, Deputy Lloyd
testified he could smell a faint odor of alcohol emitting
from Bohe's breath. Bohe's speech was slurred, and he
admitted to having consumed three alcoholic beverages. Deputy
Lloyd then asked Bohe to come back to the patrol vehicle with
him. Deputy Lloyd noted Bohe was slightly unsteady on his
feet as he walked back to the patrol vehicle.
4] Once seated in the patrol vehicle, Bohe indicated he had
consumed four beers. Deputy Lloyd then conducted the HGN, the
alphabet, and the counting backwards tests. Bohe failed each
test. Deputy Lloyd did not request the walk-and-turn or the
one-leg stand because Bohe stated he had bad knees and
because the weather had left the ground unsuitable for those
tests. Deputy Lloyd testified he read Bohe the implied
consent advisory prior to the preliminary breath test and
Bohe appeared to understand the advisory. The preliminary
breath test resulted in a blood alcohol concentration above
the legal limit. Deputy Lloyd then arrested Bohe for driving
under the influence.
5] After arresting him, Deputy Lloyd testified he read Bohe
the implied consent advisory and placed him in the back seat
of the patrol vehicle. Deputy Lloyd requested a blood test.
Bohe consented. The request was repeated about ten miles from
the jail to confirm Bohe's willingness to take the blood
draw. Bohe again indicated he would take the test. A
registered nurse drew Bohe's blood within two hours of
the observed driving time.
6] At the March 27, 2017, suppression hearing, Bohe asked
Deputy Lloyd on cross-examination if he was sure he had read
the implied consent advisory twice. Deputy Lloyd answered,
"No. I can't be sure I did." On re-examination,
the State asked if he had read the part of the advisory that
stated a refusal to take the blood test was a crime
punishable in the same manner as driving under the influence.
Deputy Lloyd testified he was recently told not to read that
part of the advisory but was not sure when he received those
7] Deputy Lloyd stated he read the implied consent advisory
again, the same way he read it the first time except that he
was asking for the chemical test rather than onsite
screening. The State again asked if he read the part about
refusal being a crime punishable in the same manner as
driving under the influence. Deputy Lloyd stated, "I
believe I would have left that out." Deputy Lloyd did
not name Birchfield v. North Dakota, 136 S.Ct. 2160
(2016), but he said he would have left out that portion
because of a recent case. Considering the uncertainty in this
testimony, the district court summarized: "the Court
observes that Deputy Lloyd clearly testified that he knew
there was a reason that portion of the advisory should be
left out, and, on that basis, he believed he left it out. The
court finds that testimony credible."
8] Bohe argues the chemical test results are inadmissible
under N.D.C.C. § 39-20-01(3)(b) because the implied
consent advisory read by Deputy Lloyd was not the complete
advisory set out in subdivision 3(a). The district court
denied Bohe's motion to suppress and determined the test
results were admissible despite its finding that Deputy Lloyd
failed to provide Bohe with the complete implied consent
advisory. We considered a materially indistinguishable
application of N.D.C.C. § 39-20-01(3) in Schoon v.
N.D. Dep't of Transp., 2018 ND 210. Although this is
an appeal from a criminal judgment rather than an
administrative appeal, the statute applies the same
admissibility test to criminal and administrative
proceedings, and thus the blood test result was inadmissible
and should have been excluded by the district court.
9] In our review of a district court's decision on a
motion to suppress,
we defer to the district court's findings of fact and
resolve conflicts in testimony in favor of affirmance. We
will affirm a district court's decision on a motion to
suppress if there is sufficient competent evidence fairly
capable of supporting the trial court's findings, and the
decision is not contrary to the manifest weight of the
evidence. Our standard of review recognizes the importance of
the district court's opportunity to observe the witnesses
and assess their credibility. ...