from the District Court of Burleigh County, South Central
Judicial District, the Honorable Gail Hagerty, Judge.
J. Hammes, Assistant City Attorney, Bismarck, ND, for
plaintiff and appellee.
R. McCabe, Bismarck, ND, for defendant and appellant.
Paul King appeals from a criminal judgment entered after a
jury found him guilty of refusing to submit to chemical
testing. King argues the district court erred in denying his
request to give his proposed jury instructions, failing to
give him an opportunity to object to the jury instructions,
and allowing testimony about a preliminary screening test. We
On July 1, 2017, Bismarck Police Officer Joseph Olsen stopped
King's vehicle. Olsen testified he smelled the odor of
alcohol coming from within the vehicle and King's eyes
appeared to be red and glossy. King performed various field
sobriety tests and was subsequently arrested for driving
under the influence.
Olsen informed King of his rights under Miranda v.
Arizona, 384 U.S. 436 (1966), and he read the implied
consent advisory to King. King agreed to submit to a breath
test and was transported to the Bismarck Police Department
for testing. At the police department, Olsen asked King if he
would submit to the breath test and he said "no."
Olsen asked King if he refused, and King replied
"yes." King was charged with operating a motor
vehicle under the influence of alcohol and/or refusing to
submit to a chemical test under Bismarck City Ordinance
A jury trial was held. Olsen requested the district court
give a jury instruction about refusal of a chemical test and
a second instruction about the right to refuse a chemical
test. The court refused to give Olsen's requested jury
instructions, and a jury found him guilty of refusing to
submit to a chemical breath test.
King argues the district court erred by failing to give
either of his requested jury instructions. He contends his
requested instructions accurately informed the jury of the
law on issues that were raised.
Jury instructions must correctly and adequately inform the
jury of the applicable law and must not mislead or confuse
the jury. State v. Pavlicek, 2012 ND 154, ¶ 14,
819 N.W.2d 521. Jury instructions are reviewed as a whole to
determine whether they adequately and correctly inform the
jury of the applicable law. Id. " T h e
district court is not required to give instructions using the
specific language the defendant requests, and may refuse to
give a requested instruction if it is irrelevant or does not
apply." State v. Montplaisir, 2015 ND 237,
¶ 29, 869 N.W.2d 435. The court errs if it refuses to
instruct the jury on an issue that was adequately raised.
Pavlicek, at ¶ 14. "A defendant is
entitled to a jury instruction on a defense if there is
evidence to support it and it creates a reasonable doubt
about an element of the charged offense." State v.
Samshal, 2013 ND 188, ¶ 14, 838 N.W.2d 463. The
evidence is viewed in the light most favorable to the
defendant to determine whether there is sufficient evidence
to support a requested instruction. Id.
King's first requested jury instruction was about refusal
of a chemical test. The proposed instruction stated:
Withdrawing the implied consent requires an affirmative
refusal to be tested. Refusal requires a conscious decision,
and the statutory scheme requires communication between the
law enforcement officer and the driver in which the officer
requests submission to the test.
The question of whether Paul King refused to take the test is
a question of fact which is left solely for your
determination. Moreover, whether Paul King was confused when
he refused to take the test is also a question ...