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State v. Bohe

Supreme Court of North Dakota

September 25, 2018

State of North Dakota, Plaintiff and Appellee
v.
Daniel Bohe, Defendant and Appellant

          Appeal from the District Court of Morton County, South Central Judicial District, the Honorable James S. Hill, Judge.

          Austin Gunderson, Mandan, N.D., for plaintiff and appellee.

          James R. Loraas, Bismarck, N.D., for defendant and appellant.

          OPINION

          Tufte, Justice.

         [¶ 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 evidence.

         I

         [¶ 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 instructions.

         [¶ 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."

         II

         [¶ 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. ...

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