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State v. Vetter

Supreme Court of North Dakota

February 21, 2019

State of North Dakota, Plaintiff and Appellant
v.
Robert S. Vetter, Defendant and Appellee

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

          Ryan A. Keefe, Assistant State's Attorney, Bismarck, N.D., for plaintiff and appellant.

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

          OPINION OF THE COURT

          Tufte, Justice.

         [¶1] The State appeals from an order granting Robert Vetter's motion to suppress chemical test evidence and motion in limine. We conclude the district court misapplied the law in interpreting statutory requirements under the implied consent law and the court failed to properly consider the totality of the circumstances to determine whether Vetter voluntarily consented to the blood test. We reverse the district court's order and remand for additional findings and for the court to determine whether Vetter's consent was voluntary.

         I

         [¶2] Vetter was charged with driving under the influence of alcohol under N.D.C.C. § 39-08-01, a class B misdemeanor. Vetter moved to suppress the chemical test evidence, arguing the evidence was obtained as a result of an unconstitutional search and seizure. He claimed the chemical test of his blood was conducted without a warrant, his consent was based on an inaccurate implied consent advisory, he did not voluntarily consent to the blood test, and therefore the search was unreasonable and violated his constitutional rights. Vetter also filed a motion in limine, arguing the evidence of the chemical test should be excluded under N.D.C.C. § 39-20-01(3)(b) because the arresting officer did not read him the full post-arrest implied consent advisory.

         [¶3] After a hearing, the district court granted Vetter's motions and ordered the chemical test evidence be excluded. The court found a Burleigh County sheriff's deputy stopped the vehicle Vetter was driving, Vetter admitted to the deputy that he had consumed alcohol that evening, and he volunteered to take a breathalyzer test. The court found the deputy read Vetter a version of the North Dakota implied consent advisory, Vetter completed the preliminary breath test, the deputy told Vetter the test showed his blood alcohol level was at.164%, and he was placed under arrest. The court further found the deputy read Vetter the implied consent advisory again, the deputy asked Vetter if he would consent to taking a test and Vetter said yes, the deputy asked Vetter if he would consent to take a blood test and Vetter said yes, and a blood test was administered. The court ruled Vetter's consent to the blood test was coerced because he was read the implied consent advisory a second time after his arrest and the advisory implied Vetter could not refuse the test without criminal consequences. The court concluded the blood test evidence must be suppressed because it was obtained as a result of an unconstitutional search and seizure.

         II

         [¶4] Vetter argues the State's appeal should be dismissed because the appeal is not authorized by N.D.C.C. § 29-28-07. Under N.D.C.C. § 29-28-07(5), the State may appeal from "[a]n order... suppressing evidence... 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." Vetter claims the appeal is from an order granting a motion in limine, which is not an appealable order.

         [¶ 5] This Court has held appeals by the State under N.D.C.C. § 29-28-07(5) are limited to appeals from the granting of a motion to suppress under N.D.R.Crim.P. 12(b)(3) and from the granting of a motion to return evidence under N.D.R.Crim.P. 41(e). See State v. Corona, 2018 ND 196, ¶¶ 7-9, 916 N.W.2d 610. Although a motion in limine and a motion to suppress both seek to exclude evidence, appeals are limited to orders excluding evidence because it was illegally obtained--we lack appellate jurisdiction to consider orders excluding evidence for other reasons. Id.; State v. Simon, 510 N.W.2d 635 (N.D. 1994) (dismissing appeal from order excluding blood test on grounds that the expert analyst was not available for cross-examination and distinguishing illegally obtained evidence from other grounds for exclusion). Vetter filed a motion in limine seeking exclusion of the chemical test based on an incomplete implied consent advisory and a motion to suppress seeking exclusion of the same test based on a claim it was illegally obtained as a result of an unreasonable search. The court granted both motions and suppressed the blood test evidence, concluding the evidence was obtained as a result of an unconstitutional search. The State appealed from this order and also filed a statement from the prosecuting attorney stating the appeal was not taken for the purpose of delay and the evidence is substantial proof of a fact material to the proceeding. We conclude the State appealed from an order granting a motion to suppress and the appeal is authorized by N.D.C.C. § 29-28-07(5). See State v. Fleckenstein, 2018 ND 52, ¶ 4, 907 N.W.2d 365.

         III

         [¶6] The State argues the district court misapplied the law in interpreting statutory requirements under the implied consent law and the court erred in determining Vetter did not voluntarily consent to the blood test.

         [¶7] In reviewing the district court's decision on a motion to suppress, this Court gives deference to the district court's findings of fact. Fleckenstein, 2018 ND 52, ¶ 5, 907 N.W.2d 365. The court's decision will not be reversed on appeal if there is sufficient competent evidence fairly capable of supporting the court's findings and the decision is not contrary to the manifest weight of the evidence. Id. ...


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