Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

City of Grand Forks v. Barendt

Supreme Court of North Dakota

December 6, 2018

City of Grand Forks, Plaintiff and Appellant
v.
Thomas Arthur Barendt, Defendant and Appellee

          Appeal from the District Court of Grand Forks County, Northeast Central Judicial District, the Honorable Jay D. Knudson, Judge.

          Sarah W. Gereszek, Grand Forks, ND, for plaintiff and appellant.

          Joel F. Arnason (argued) and Kerry S. Rosenquist (on brief), Grand Forks, ND, for defendant and appellee.

          MCEVERS, JUSTICE.

         [¶ 1] The City of Grand Forks appeals a district court order suppressing the results of Thomas Barendt's chemical breath test after the City charged Barendt with actual physical control of a vehicle while under the influence of alcohol. We affirm, concluding North Dakota's implied consent advisory must be read after placing an individual under arrest and before the administration of a chemical test.

         I

         [¶ 2] According to the facts as agreed to by the parties, in October 2017, while conducting a welfare check in Grand Forks, Officer Luke Wentz observed Barendt slumped over in his vehicle. After interacting with Barendt, Wentz suspected Barendt may be under the influence of alcohol. Wentz administered field sobriety tests, and Barendt refused a preliminary breath test.

         [¶ 3] Wentz informed Barendt of the North Dakota implied consent advisory and Barendt agreed to take a chemical breath test. Wentz then arrested Barendt for actual physical control of a vehicle while under the influence of alcohol and administered a breath test at the Grand Forks County Correctional Center. The breath test results showed Barendt's blood alcohol concentration was above 0.08 percent.

         [¶ 4] In March 2018 before trial, Barendt moved to suppress the results of the chemical breath test because he was not given the implied consent advisory after he was arrested and before Wentz administered the test. The district court agreed and suppressed Barendt's breath test results. Relying on State v. O'Connor, 2016 ND 72, 877 N.W.2d 312, the court concluded "that the rule of law in North Dakota is that an implied consent advisory must be given after an individual has been placed under arrest and before the chemical test is administered."

         II

         [¶ 5] The City argues the district court erred in suppressing the results of Barendt's chemical breath test because Barendt filed his suppression motion after the pretrial motion deadline.

         [¶ 6] The district court established a January 19, 2018, pretrial motion deadline. Barendt's original trial date was March 13, 2018; however, trial was continued to May 22, 2018, after the City requested a continuance. The pretrial motion deadline was not extended, and Barendt filed his motion to suppress on March 22, 2018.

         [¶ 7] Under N.D.R.Crim.P. 12(c)(1), "[t]he court may... set a deadline for the parties to make pretrial motions and may also schedule a motion hearing." "At any time before trial, the court may extend or reset the deadline for pretrial motions." N.D.R.Crim.P. 12(c)(2). If a party does not meet the deadline established for filing pretrial motions, "the motion is untimely. But a court may consider the defense, objection, or request if the party shows good cause." N.D.R.Crim.P. 12(c)(3).

         [¶ 8] The parties and the district court acknowledged Barendt's motion was not timely; however, the court ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.