from the District Court of Grand Forks County, Northeast
Central Judicial District, the Honorable Jay D. Knudson,
W. Gereszek, Grand Forks, ND, for plaintiff and appellant.
F. Arnason (argued) and Kerry S. Rosenquist (on brief), Grand
Forks, ND, for defendant and appellee.
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
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."
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
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