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City of Bismarck v. Vagts

Supreme Court of North Dakota

August 22, 2019

City of Bismarck, Plaintiff and Appellee
v.
Melanie Jean Vagts, Defendant and Appellant

          Appeal from the District Court of Burleigh County, South Central Judicial District, the Honorable Douglas A. Bahr, Judge.

          Ashley Hinds, Assistant City Attorney, Bismarck, N.D., for plaintiff and appellee.

          Danny L. Herbel, Bismarck, N.D., for defendant and appellant.

          OPINION

          TUFTE, JUSTICE.

         [¶1] Melanie Vagts appeals from a criminal judgment entered after the district court denied her motion to suppress evidence and she conditionally pled guilty to a charge of actual physical control of a motor vehicle while under the influence of alcohol. We conclude law enforcement officers' encounter with Vagts was not an illegal search and seizure, but an officer's implied consent advisory did not substantively comply with the statutory requirements of N.D.C.C. § 39-20-01(3)(a) and the results of her breath test are not admissible under N.D.C.C. § 39-20-01(3)(b). We reverse and remand to allow Vagts to withdraw her conditional guilty plea.

         I

         [¶2] In August 2018, the City of Bismarck charged Vagts with actual physical control of a motor vehicle while under the influence of alcohol. According to Bismarck Police Officer Adam Baker, he encountered Vagts in the driver's seat of a parked vehicle while responding to a fellow officer's report of a vehicle being driven erratically. According to Officer Baker, he observed two occupants in a parked vehicle matching the fellow officer's description of the erratically driven vehicle, he parked his squad car a car length behind the vehicle without activating his overhead lights, and he observed keys being thrown out of the passenger's side window. Officer Baker testified the passenger window of the parked vehicle was open, he heard loud music coming from the vehicle, and he could smell the odor of alcohol coming from the vehicle. According to Officer Baker, he asked the occupants to turn the music down and began speaking with them. Officer Baker testified he asked the occupant of the driver's seat, later identified as Vagts, to get out of the vehicle. Officer Baker testified that when Vagts got out of the car, he could smell alcohol coming from her as he talked to her, her speech was a "little bit" slurred, and she had red, bloodshot eyes. According to Officer Baker, Vagts repeatedly denied driving the vehicle and refused to consent to field sobriety tests. Officer Baker testified he arrested Vagts and read her the Miranda warning and language from the implied consent advisory in N.D.C.C. § 39-20-01(3)(a), which the prosecution stipulated omitted the phrases "directed by the law enforcement officer" and "a crime." Vagts submitted to a chemical test indicating her blood-alcohol level was above the legal limit, and she was charged with actual physical control of a motor vehicle while under the influence.

         [¶3] Vagts moved to suppress evidence, claiming that Officer Baker's initial encounter with her violated her state and federal constitutional rights to be free from unreasonable searches and seizures and that Officer Baker failed to comply with the statutory implied consent advisory in N.D.C.C. § 39-20-01(3)(a). After an evidentiary hearing, the district court denied Vagts' motion to suppress. The court determined that law enforcement officers' encounter with Vagts did not violate her constitutional rights and that Officer Baker provided a substantively complete statutory implied consent advisory under N.D.C.C. § 39-20-01(3)(a). Vagts then entered a conditional guilty plea to the charge.

         II

         [¶4] We have described our standard of review of a district court decision on a motion to suppress:

[W]e defer to the district court's findings of fact and resolve conflicts in testimony in favor of affirmance. We 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. Our standard of review recognizes the importance of the district court's opportunity to observe the witnesses and assess their credibility. 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. Bohe, 2018 ND 216, ¶ 9, 917 N.W.2d 497 (quoting State v. Hawkins, 2017 ND 172, ¶ 6, 898 N.W.2d 446).

         III

         [¶5] Vagts argues that Officer Baker illegally seized her in the parked vehicle in violation of her constitutional right to be free from unreasonable searches and seizures and that all evidence obtained after that seizure must be suppressed. She claims Officer Baker did not have a reasonable and articulable suspicion ...


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