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State v. Vigen

Supreme Court of North Dakota

May 16, 2019

State of North Dakota, Plaintiff and Appellee
v.
Brent Vigen, Defendant and Appellant

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

          Conor Kennelly, Assistant State's Attorney, Bismarck, ND, for plaintiff and appellee.

          Danny L. Herbel, Bismarck, ND, for defendant and appellant.

          OPINION

          Jensen, Justice.

         [¶1] 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 guilty plea.

         I.

         [¶2] 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.

         [¶3] 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. § 39-20-01(3)(a).

         [¶4] 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).

         II.

         [¶5] "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.

         [¶6] "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 warrant.

         [¶7] 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 ...


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