from the District Court of Burleigh County, South Central
Judicial District, the Honorable James S. Hill, Judge.
Kennelly, Assistant State's Attorney, Bismarck, ND, for
plaintiff and appellee.
L. Herbel, Bismarck, ND, for defendant and appellant.
Brent Vigen appeals from a criminal judgment entered after
his conditional guilty plea to driving under the influence.
Vigen argues the district court erred in denying his motion
to suppress after the court's finding that a modified
implied consent advisory satisfied the requirements of
N.D.C.C. § 39-20-01(3)(a). We reverse the judgment and
remand for further proceedings to allow Vigen to withdraw his
Vigen was arrested and charged with driving under the
influence. Vigen was read the then applicable implied consent
advisory required by N.D.C.C. § 39-20-01(3)(a), but
modified to omit the portion of the advisory that would have
informed him of the consequences for refusing to submit to a
urine test. After Vigen was provided with the modified
implied consent advisory, he was asked to perform a breath
test. Vigen consented to the breath test. The result of the
breath test indicated Vigen had a blood alcohol content over
the legal limit for driving.
Vigen moved the district court to suppress the results of his
chemical breath test asserting that modification of the
implied consent advisory required by N.D.C.C. §
39-20-01(3)(a) to omit the reference to a urine test requires
exclusion of the result of the breath test from evidence
under N.D.C.C. § 39-20-01(3)(b). Following an
evidentiary hearing, the court denied Vigen's motion and
found the modified advisory satisfied N.D.C.C. §
Vigen entered a conditional plea of guilty to the charge of
DUI, under N.D.R.Crim.P. 11(a)(2), reserving the right to
appeal the district court's denial of his motion to
suppress evidence. The court approved the conditional plea of
guilty and entered a judgment. On appeal, Vigen argues the
chemical test evidence is inadmissible under N.D.C.C. §
39-20-01(3)(b) because he was not provided with the complete
and specific implied consent advisory required by the then
existing version of N.D.C.C. § 39-20-01(3)(a).
"In reviewing a district court's decision on a
motion to suppress evidence," this Court will
"defer to the district court's findings of fact and
resolve conflicts in testimony in favor of affirmance."
State v. Graf, 2006 ND 196, ¶ 7, 721 N.W.2d
381. This Court "will affirm a district court's
decision on a motion to suppress if there is sufficient
competent evidence fairly capable of supporting the trial
court's findings, and the decision is not contrary to the
manifest weight of the evidence." Id.
"Questions of law are fully reviewable on appeal, and
whether a finding of fact meets a legal standard is a
question of law." State v. O'Connor, 2016
ND 72, ¶ 6, 877 N.W.2d 312.
"Any individual who operates a motor vehicle on a
highway or on public or private areas to which the public has
a right of access for vehicular use in this state is deemed
to have given consent, and shall consent," to submit to
chemical testing to determine alcohol concentration via
blood, breath, or urine. N.D.C.C. § 39-20-01(1). At the
time Vigen was arrested, through N.D.C.C. §
39-20-01(3)(a), the legislature required the following
"implied consent advisory" be given to individuals
prior to a request they submit to chemical testing:
The law enforcement officer shall inform the individual
charged that North Dakota law requires the individual to take
a chemical test to determine whether the individual is under
the influence of alcohol or drugs and that refusal of the
individual to submit to a test directed by the law
enforcement officer may result in a revocation of the
individual's driving privileges for a minimum of one
hundred eighty days and up to three years. In addition, the
law enforcement officer shall inform the individual refusal
to take a breath or urine test is a crime punishable in the
same manner as driving under the influence. If the officer
requests the individual to submit to a blood test, the
officer may not inform the individual of any criminal
penalties until the officer has first secured a search
We have recognized N.D.C.C. § 39-20-01(3)(a), requires
specific information be communicated by law enforcement when
requesting an individual arrested for driving under the
influence submit to chemical testing. LeClair v.
Sorel, 2018 ND 255, ¶ 9, 920 N.W.2d 306. Law
enforcement is required to read the "complete implied
consent advisory before administering" a chemical test.
O'Connor, 2016 ND 72, ¶ 1, 877 N.W.2d 312.
For an advisory to be considered ...