from the District Court of Pembina County, Northeast Judicial
District, the Honorable Laurie A. Fontaine, Judge.
Stephenie L. Davis (argued), Special Assistant State's
Attorney, Manning, ND, and Rebecca L. Flanders (on brief),
Pembina County State's Attorney, Cavalier, ND, for
plaintiff and appellant.
Alexander F. Reichert (argued), and Challis D. Williams
(appeared), Grand Forks, ND, for defendant and appellee.
VandeWalle, Chief Justice.
The State appealed from an order granting Derek
Grzadzieleski's motion to suppress hospital records
disclosing that his blood-alcohol content was above the legal
limit after an all-terrain vehicle accident. We conclude the
State has no statutory right to appeal the order and we
decline to exercise our supervisory authority. We therefore
dismiss the appeal for lack of jurisdiction.
On July 4, 2018, Grzadzieleski was involved in an all-terrain
vehicle accident and was transported to a hospital. Hospital
staff would not allow law enforcement officers to speak to
him because of the severity of his condition. On July 20,
2018, officers obtained a search warrant for
Grzadzieleski's medical records and the hospital produced
the records. The records revealed he had a blood-alcohol
level above the legal limit after the accident. The State
charged him with operating an off-highway vehicle while under
the influence of alcohol under N.D.C.C. §
Grzadzieleski moved to suppress the evidence, arguing the
medical records were privileged based upon the
physician-patient privilege under N.D.R.Ev. 503.
Characterizing the suppression motion as a motion in
limine, the district court ruled the evidence of
Grzadzieleski's blood-alcohol content was inadmissible
based on the physician-patient privilege.
Grzadzieleski has moved to dismiss the appeal, claiming the
district court's order is not appealable under N.D.C.C.
The State's right to appeal in a criminal case is
governed by N.D.C.C. § 29-28-07 and is a jurisdictional
matter. See, e.g., State v. Powley, 2019 ND 51,
¶ 7, 923 N.W.2d 123; State v. Simon, 510 N.W.2d
635, 636 (N.D. 1994). We have held that N.D.C.C. §
29-28-07(5), which allows the State to appeal an order
"granting the return of property or suppressing
evidence," authorizes appeals only from orders granting
a motion to suppress evidence under N.D.R.Crim.P.
12(b)(3) and from orders granting a motion to return
evidence under N.D.R.Crim.P. 41(e). See
Simon, at 636. The statute allows appeals from orders
excluding or suppressing evidence on the ground that the
evidence was illegally obtained, but does not allow appeals
from orders in limine excluding evidence based on
evidentiary grounds. See, e.g., Powley, at
¶¶ 9-11; State v. Corona, 2018 ND 196,
¶¶ 5-9, 916 N.W.2d 610; State v. Counts,
472 N.W.2d 756, 757 (N.D. 1991); State v. Miller,
391 N.W.2d 151, 155 (N.D. 1986). In Counts, at 757,
we specifically rejected an attempted appeal by the State
from an order excluding evidence based on the husband-wife
privilege under N.D.R.Ev. 504.
Although Grzadzieleski labeled his motion to exclude the
blood-alcohol evidence as a motion to suppress, in
determining appealability it is not the label of a motion or
order that controls, but rather it is the effect of the
motion or order. See State v. Keilen, 2002 ND 133,
¶ 7, 649 N.W.2d 224; State v. Owens, 1997 ND
212, ¶ 6, 570 N.W.2d 217; State v. Hogie, 424
N.W.2d 630, 631 (N.D. 1988). The district court correctly
characterized Grzadzieleski's motion as a motion in
limine, because it was based on evidentiary grounds. We
conclude N.D.C.C. § 29-28-07(5) does not permit the
State to appeal from an in limine order excluding
evidence based on the physician-patient privilege under
The State requests that we exercise our supervisory
jurisdiction and issue a supervisory writ to ...