City of Fargo v. Thompson

• Decision Date: 24 August 1994
• Docket Number: Cr. N
• Citation: 520 N.W.2d 578
• Parties: CITY OF FARGO, Plaintiff and Appellant, v. William Noble THOMPSON, Defendant and Appellee. CITY OF FARGO, Plaintiff and Appellant, v. Timothy Duane DORNHEIM, Defendant and Appellee. CITY OF FARGO, Plaintiff and Appellant, v. Charles Herman BOMMERSBACH, Defendant and Appellee. CITY OF FARGO, Plaintiff and Appellant, v. Christopher Michael FRANEK, Defendant and Appellee. os. 940008, 940009, 940010 to 940012.
• Court: North Dakota Supreme Court

Page 578

520 N.W.2d 578

CITY OF FARGO, Plaintiff and Appellant, v. William Noble THOMPSON, Defendant and Appellee.

CITY OF FARGO, Plaintiff and Appellant, v. Timothy Duane DORNHEIM, Defendant and Appellee.

CITY OF FARGO, Plaintiff and Appellant, v. Charles Herman BOMMERSBACH, Defendant and Appellee.

CITY OF FARGO, Plaintiff and Appellant, v. Christopher Michael FRANEK, Defendant and Appellee.

Cr. Nos. 940008, 940009, 940010 to 940012.

Supreme Court of North Dakota.

Aug. 24, 1994.

Thomas J. Gaughan, City Prosecutor, Fargo, for plaintiff and appellant.

Robin L. Olson, of Nelson Law Office, Fargo, for defendants and appellees.

SANDSTROM, Justice.

In City of Fargo v. Stutlien, 505 N.W.2d 738 (N.D.1993), we held illegal a court-ordered procedure for mandatory minimum periods of detention for all driving under the influence and actual physical control arrestees. But we reversed the dismissal of criminal prosecutions against the defendants charged in those cases, concluding absent "evidence that these minimum periods of detention actually prejudiced the defendants' right to present a defense and have a fair trial, the trial court's dismissal of the charges was speculative and premature." Stutlien at 746. After separate evidentiary hearings on remand, the trial court found William Thompson, Timothy Dornheim, Charles Bommersbach, and Christopher Franek had satisfactorily shown their right to a fair trial was actually prejudiced by their detentions, and dismissed the charges pending against them. The City of Fargo appeals, claiming none of these defendants established actual prejudice.

We hold there is sufficient competent evidence to support the trial court's findings of actual prejudice to Thompson and Bommersbach, and the findings are not contrary to the manifest weight of the evidence. We affirm the dismissal of the charges against Thompson and Bommersbach. However, we hold there is insufficient competent evidence to support the trial court's findings of actual prejudice to Dornheim and Franek, and the findings are contrary to the manifest weight of the evidence. We reverse the dismissal of the charges against Dornheim and Franek and remand for further proceedings.

The trial court had jurisdiction under Art. VI, § 1, N.D. Const., and N.D.C.C. §§ 27-07.1-17(3); 27-07.1-18; 40-18-15.1; and 40-18-19. This Court has jurisdiction under Art. VI, § 6, N.D. Const., and N.D.C.C. § 29-28-07(1). The appeals were timely under Rule 4(b), N.D.R.App.P.

I

To establish actual prejudice, a defendant must "factually link her loss of liberty with any specific prejudice to her right to a fair trial." City of Jamestown v. Erdelt, 513 N.W.2d 82, 85 (N.D.1994). In other words, a defendant "must show that 'lost evidence or testimony would have been helpful to his defense, that the evidence would have been significant, and that the evidence or testimony was lost' as a result of the statutory deprivations of which he complains." State v. Knoll, 322 N.C. 535, 369 S.E.2d 558, 565 (1988) (quoting State v. Dietz, 289 N.C. 488, 223 S.E.2d 357, 360 (1976)). As we noted in Stutlien at 744, also bearing on the question of actual prejudice to driving under the influence or actual physical control arrestees is the statutory right under N.D.C.C. § 39-20-02 to a reasonable opportunity to obtain an additional, independent blood-alcohol test. See State v. Messner, 481 N.W.2d 236, 240 (N.D.1992); State v. Dressler, 433 N.W.2d 549, 550 (N.D.Ct.App.1988). Likewise, under N.D.C.C. § 29-05-20, driving under the influence or actual physical control arrestees have a statutory right to meaningfully consult with an attorney. See City of Mandan v. Jewett, 517 N.W.2d 640, 641 (N.D.1994) (right also applies before arrestee decides whether to submit to blood-alcohol testing); Bickler v. North Dakota State Highway Commissioner, 423 N.W.2d 146, 147 (N.D.1988) (same); Kuntz v. State Highway Commissioner, 405 N.W.2d 285, 287 (N.D.1987) (same).

In all of these cases, the City argues opinion testimony about sobriety is immaterial to the finding of actual prejudice because an alcohol concentration of .10 percent by weight is a per se violation of the law. We reject this argument because a traffic citation alleging driving under the influence or actual physical control charges both a per se violation as well as a general driving under the influence violation under N.D.C.C. § 39-08-01(1). City of Minot v. Bjelland, 452 N.W.2d 348, 349 (N.D.1990); State v. Keegan, 493 N.W.2d 219, 220 (N.D.Ct.App.1992). Consequently, the results of a blood-alcohol test are not necessary to sustain a driving under the influence or an actual physical control conviction. State v. Pollack, 462 N.W.2d 119, 122 (N.D.1990); State v. Whitney, 377 N.W.2d 132, 133 (N.D.1985). Opinion testimony of sobriety at a critical time is therefore relevant in defending a driving under the influence or an actual physical control charge.

Finally, "impairment of one's defense is the most difficult form of ... prejudice to prove because time's erosion of exculpatory evidence and testimony 'can rarely be shown.' " Doggett v. United States, 505 U.S. 647, ----, 112 S.Ct. 2686, 2692-2693, 120 L.Ed.2d 520 (1992) (quoting Barker v. Wingo, 407 U.S. 514, 532, 92 S.Ct. 2182, 2193, 33 L.Ed.2d 101 (1972)). Although a defendant carries a heavy burden to show actual prejudice to his right to a fair trial, this burden is not insurmountable. See Doggett; Knoll, 369 S.E.2d at 565.

II

A trial court's findings of fact in preliminary proceedings of a criminal case will not be reversed if, after the conflicts in the testimony are resolved in favor of affirmance, 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. City of Grand Forks v. Risser, 512 N.W.2d 462, 464 (N.D.1994) (request for second alcohol test); State v. Murray, 510 N.W.2d 107, 109 (N.D.1994) (voluntariness of confession); State v. Nelson, 488 N.W.2d 600, 602 (N.D.1992) (reasonable suspicion to stop vehicle); State v. Everson, 474 N.W.2d 695, 704 (N.D.1991) (consent to search). We do not conduct a de novo review. State v. Discoe, 334 N.W.2d 466, 470 (N.D.1983). We evaluate the evidence presented to see, based on the standard of review, if it supports the findings of fact. See Risser; Murray; Nelson; Everson; Discoe.

III

The City contends the trial court erred in finding Thompson and Bommersbach were actually prejudiced by their periods of detention.

A

The trial court dismissed two charges against Thompson arising from separate incidents.

At 2:35 a.m. on August 4, 1992, Thompson was arrested for actual physical control after police found him asleep in his vehicle in a Fargo parking lot. Thompson consented to a blood test which was taken at a Fargo hospital. Thompson testified he was not told he had a right to an attorney before taking the test and he was not informed of his right to an independent test. He posted bail and signed a promise to appear. Thompson was taken to Centre Detox at approximately 3:20 a.m. The admission note on the Centre Detox Client Information Form states Thompson was "well kept, healthy[,] co-operative, compliant. Clothes clean[.]" He signed a promise to appear, blew into a "machine," and was told he would have to stay "for a certain length of time before I'd be released again."

According to Thompson, an employee at Centre Detox called his wife and informed her of Thompson's whereabouts. Thompson did not ask to have an attorney called for him. Thompson testified he "asked quite a few times" to use the phone and was told "no one can use the phone." Thompson testified, upon noticing his actions were being entered in a log, he was hesitant to ask Centre Detox employees to call an attorney for him or to ask his wife to call an attorney because "I thought ... it was something that they might hold ... against me later on...." After a shift change, Thompson was allowed to call his employer at 8 a.m. and tell him he would not be at work. Thompson was finally released from Centre Detox at 2:10 p.m. Thompson testified if he had had an opportunity for private telephone conversations, he would have talked to his wife, friends, and a lawyer for advice.

The trial court found Thompson was held at Centre Detox for 11 hours and, having been told by personnel he could not use the telephone, was effectively prohibited from contacting an attorney, who "would have been in a position to advise [Thompson] concerning preparation of his case," or his wife, who "could have come to Centre to secure his release and observe him during the critical period of time shortly after his arrest." Although Thompson was allowed to use the phone at 8 a.m., this was five hours after his arrest. These circumstances were especially significant, the court said, because Thompson's "outward appearance as noted in the Centre records did not indicate impairment." The trial court found Thompson's "right to fair trial has actually been prejudiced...."

There is sufficient competent evidence to support the trial court's finding of actual prejudice and we cannot say the trial court's finding is against the manifest weight of the evidence. We cannot agree with the City's argument the finding of prejudice is based on "pure speculation and surmise." The trial court accepted Thompson's testimony he was denied use of a telephone during the early morning hours following his arrest and detention. The trial court accepted Thompson's statements of what he would have done as fact. While we decline to adopt a per se prejudice rule requiring dismissal when an arrestee is denied use of a telephone, see Stutlien at 744, more was presented here. There is evidence Thompson lacked outward signs of alcohol impairment when admitted to Centre Detox. This permitted the trial court to draw a reasonable inference contact with Thompson's wife, friends, or an attorney would have resulted...