City of Bismarck v. King

• Decision Date: 13 March 2019
• Docket Number: No. 20180138,20180138
• Citation: 924 N.W.2d 137
• Parties: CITY OF BISMARCK, Plaintiff and Appellee v. Paul KING, Defendant and Appellant
• Court: North Dakota Supreme Court

924 N.W.2d 137

CITY OF BISMARCK, Plaintiff and Appellee

v.Paul KING, Defendant and Appellant

No. 20180138

Supreme Court of North Dakota.

Filed March 13, 2019

Jason J. Hammes, Assistant City Attorney, Bismarck, ND, for plaintiff and appellee.

Chad R. McCabe, Bismarck, ND, for defendant and appellant.

McEvers, Justice.

[¶1] Paul King appeals from a criminal judgment entered after a jury found him guilty of refusing to submit to chemical testing. King argues the district court erred in denying his request to give his proposed jury instructions, failing to give him an opportunity to object to the jury instructions, and allowing testimony about a preliminary screening test. We affirm.

I

[¶2] On July 1, 2017, Bismarck Police Officer Joseph Olsen stopped King’s vehicle. Olsen testified he smelled the odor of alcohol coming from within the vehicle and King’s eyes appeared to be red and glossy. King performed various field sobriety tests and was subsequently arrested for driving under the influence.

[¶3] Olsen informed King of his rights under Miranda v. Arizona , 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966), and he read the implied consent advisory to King. King agreed to submit to a breath test and was transported to the Bismarck Police Department for testing. At the police department, Olsen asked King if he would submit to the breath test and he said "no." Olsen asked King if he refused, and King replied "yes." King was charged with operating a motor vehicle under the influence of alcohol and/or refusing to submit to a chemical test under Bismarck City Ordinance § 12-10-01(1).

[¶4] A jury trial was held. Olsen requested the district court give a jury instruction about refusal of a chemical test and a second instruction about the right to refuse a chemical test. The court refused to give Olsen’s requested jury instructions, and a jury found him guilty of refusing to submit to a chemical breath test.

II

[¶5] King argues the district court erred by failing to give either of his requested jury instructions. He contends his requested instructions accurately informed the jury of the law on issues that were raised.

[¶6] Jury instructions must correctly and adequately inform the jury of the applicable law and must not mislead or confuse the jury. State v. Pavlicek , 2012 ND 154, ¶ 14, 819 N.W.2d 521. Jury instructions are reviewed as a whole to determine whether they adequately and correctly inform the jury of the applicable law. Id. "The district court is not required to give instructions using the specific language the defendant requests, and may refuse to give a requested instruction if it is irrelevant or does not apply." State v. Montplaisir , 2015 ND 237, ¶ 29, 869 N.W.2d 435. The court errs if it refuses to instruct the jury on an issue that was adequately raised. Pavlicek , at ¶ 14. "A defendant is entitled to a jury instruction on a defense if there is evidence to support it and it creates a reasonable doubt about an element of the charged offense." State v. Samshal , 2013 ND 188, ¶ 14, 838 N.W.2d 463. The evidence is viewed in the light most favorable to the defendant to determine whether there is sufficient evidence to support a requested instruction. Id.

A

[¶7] King’s first requested jury instruction was about refusal of a chemical test. The proposed instruction stated:

Withdrawing the implied consent requires an affirmative refusal to be tested. Refusal requires a conscious decision, and the statutory scheme requires communication between the law enforcement officer and the driver in which the officer requests submission to the test.

The question of whether Paul King refused to take the test is a question of fact which is left solely for your determination. Moreover, whether Paul King was confused when he refused to take the test is also a question of fact which is left solely for your determination.

[¶8] King claims the first paragraph of the requested instruction adequately informed the jury of the law because it directly quoted language from Grosgebauer v. N.D. Dep’t of Transp. , 2008 ND 75, 747 N.W.2d 510.

[¶9] This Court previously addressed a similar instruction in State v. Keller , 2016 ND 63, 876 N.W.2d 724. The requested instruction in Keller stated:

Withdrawing the implied consent requires an affirmative refusal to be tested. Refusal requires a conscious decision, and the statutory scheme requires communication between the law enforcement officer and the driver in which the officer requests submission to the test. Whether a driver affirmatively refused to submit to testing is a question of fact which is left solely for your determination.

When the law enforcement officer fails to advise the driver of the criminal sanctions for refusal of a chemical test, a refusal to take the test under these conditions is not the affirmative refusal necessary.

Id. at ¶ 6. The defendant in Keller also argued this Court’s decision in Grosgebauer , 2008 ND 75, 747 N.W.2d 510, supported her requested instruction. Keller , at ¶ 7. We rejected that argument in Keller and held the instruction was inaccurate because it required the jury to find affirmative refusal in the form of communication between the driver and the officer, which is not required by law. Id . at ¶¶ 7-8. We explained that refusal does not have to be explicitly stated and that "stubborn silence" or "physical failure to cooperate" may also indicate refusal. Id. at ¶ 6.

[¶10] The first paragraph and first sentence of the second paragraph of King’s requested instruction is almost identical to the language used in the instruction in Keller . King’s requested instruction also required the jury to find affirmative refusal in the form of communication between the driver and officer. As we said in Keller , that is not required by law and the instruction is not accurate. The district court did not err by refusing to give King’s requested instruction.

B

[¶11] King argues the second paragraph of the first requested instruction should have been given even if the whole requested instruction was not given because it was imperative the jury be instructed that the issue of whether King was confused when he refused to take the chemical test was a question of fact. King relies on this Court’s decision in Obrigewitch v. Dir., N.D. Dep’t of Transp. , 2002 ND 177, 653 N.W.2d 73, to support his claim that the jury must consider whether the driver was confused when he refused to submit to testing. King claims there was evidence he was confused when he refused to take the breath test and the jury would have acquitted him if they found he was confused. King’s argument assumes a defendant’s confusion is a defense to a criminal refusal charge.

[¶12] In Obrigewitch , 2002 ND 177, ¶ 14, 653 N.W.2d 73, this Court said, "The question of whether Obrigewitch refused to take the test is a question of fact. Hammeren v. N.D. State Highway Comm’n , 315 N.W.2d 679, 682-83 (N.D. 1982). Whether Obrigewitch was confused when he refused to take the test is also a question of fact. Id. at 683." This Court previously discussed the "confusion doctrine" in greater detail in Ehrlich v. Backes , 477 N.W.2d 211, 212-13 (N.D. 1991). We said "The ‘confusion doctrine’ provides that when an arresting officer introduces the question of a drunken-driving suspect’s right to counsel by giving a Miranda warning prior to requesting a chemical test, the suspect’s subsequent refusal to take a test until an attorney is consulted may not constitute a ‘refusal to submit’ to a chemical test." Id. We further explained the confusion doctrine does not apply when the officer explicitly informs the driver that the Miranda rights do not apply to the taking of a chemical test pursuant to the implied consent law. Id. at 213.

[¶13] The important thread throughout our cases discussing confusion generally involves the driver’s right to have the opportunity to consult with an attorney. See Ehrlich , 477 N.W.2d at 214 (discussing confusion doctrine in the context of Miranda warnings and holding that driver is only entitled to a reasonable opportunity to consult with an attorney); Bickler v. N.D. State Highway Comm’r , 423 N.W.2d 146, 147 (N.D. 1988) (discussing the limited nature of the right to consult with an attorney prior to taking a chemical test); Kuntz v. State Highway Comm’r , 405 N.W.2d 285, 290 (N.D. 1987) (holding that if an arrested person asks to consult with an attorney before deciding to take the chemical test, he must be given a reasonable opportunity to do so if it does not materially interfere with the administration of the test); Hammeren , 315 N.W.2d at 682 (declining to adopt a "per se" confusion rule for failure of an officer to inform a driver following a Miranda warning that his license will be suspended if he refuses to submit to a test); Agnew v. Hjelle , 216 N.W.2d 291, 297 (N.D. 1974) (discussing "so-called ‘confusion doctrine’ " having been applied under limited circumstances in California when the driver refuses to take a test because he was confused by Miranda warnings).

[¶14] As Justice Levine further explained in her concurrence in Ehrlich , 477 N.W.2d at 215 :

The importance of the opportunity to consult with counsel is to mitigate the confusion that inheres in the situation where there is a Miranda assurance of a right to counsel followed by a denial of access to an attorney to advise whether to take the test.

Under Kuntz and Bickler , any confusion that would justify a reversal of a license revocation, is obviated by the opportunity of an arrestee to consult with counsel before taking a chemical test.

(Justice Levine, concurring in result) (internal citations omitted). This Court also noted "we have never reversed a license revocation based on the ‘confusion doctrine’ " but we indicated the issue may be raised in license revocation proceedings. Id. at 212.

[¶15] This is a criminal prosecution and not an administrative license revocation proceeding. If King wanted to argue his limited right to consult with an...