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State v. Grzadzieleski

Supreme Court of North Dakota

October 29, 2019

State of North Dakota, Plaintiff and Appellant
v.
Derek James Grzadzieleski, Defendant and Appellee

          Appeal 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.

          OPINION

          VandeWalle, Chief Justice.

         [¶1] 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.

         I

         [¶2] 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. § 39-29-09(5)(c).

         [¶3] 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.

         II

         [¶4] Grzadzieleski has moved to dismiss the appeal, claiming the district court's order is not appealable under N.D.C.C. § 29-28-07(5).

         [¶5] 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.

         [¶6] 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 N.D.R.Ev. 503.

         III

         [¶7] The State requests that we exercise our supervisory jurisdiction and issue a supervisory writ to ...


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