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City of Bismarck v. King

Supreme Court of North Dakota

March 13, 2019

City of Bismarck, Plaintiff and Appellee
v.
Paul King, Defendant and Appellant

          Appeal from the District Court of Burleigh County, South Central Judicial District, the Honorable Gail Hagerty, Judge.

          Jason J. Hammes, Assistant City Attorney, Bismarck, ND, for plaintiff and appellee.

          Chad R. McCabe, Bismarck, ND, for defendant and appellant.

          OPINION

          MCEVERS, JUSTICE.

         [¶1] 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 affirm.

         I

         [¶2] 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.

         [¶3] 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 § 12-10-01(1).

         [¶4] 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.

         II

         [¶5] 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.

         [¶6] 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.

         A

         [¶7] 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 ...

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