City of Jamestown v. Casarez

• Decision Date: 20 April 2021
• Docket Number: No. 20200279,20200279
• Citation: 958 N.W.2d 467
• Parties: CITY OF JAMESTOWN, Plaintiff and Appellee v. Santos Regalado CASAREZ, III, Defendant and Appellant
• Court: North Dakota Supreme Court

958 N.W.2d 467

CITY OF JAMESTOWN, Plaintiff and Appellee

v.Santos Regalado CASAREZ, III, Defendant and Appellant

No. 20200279

Supreme Court of North Dakota.

FILED APRIL 20, 2021

Rehearing Denied May 6, 2021

Abbagail C. Geroux, Assistant City Attorney, Jamestown, ND, for plaintiff and appellee.

Luke T. Heck (argued) and Drew J. Hushka (appeared), Fargo, ND, for defendant and appellant.

Crothers, Justice.

[¶1] Santos Regalado Casarez, III, appeals from a criminal judgment entered after his motion to suppress was denied and his conditional guilty plea to refusing to take a chemical breath test was accepted. We affirm.

I

[¶2] At approximately 11 p.m. on November 6, 2019, Jamestown Police Officer Andrew Noreen witnessed a physical altercation between Casarez and a female outside a bar in Jamestown. That altercation led to the arrest of the female within 30 minutes of Noreen's initial encounter with the two. Noreen learned the altercation occurred because the female did not want Casarez to drive while intoxicated. Officer Renfro also was at the scene and spoke to the female and Casarez. During Renfro's conversation with Casarez, he smelled an odor of alcohol on Casarez's breath, and observed Casarez's poor balance and bloodshot eyes. At that point Renfro formed the opinion Casarez was not capable of lawfully driving a motor vehicle. Casarez inquired how to post bail for his girlfriend. Renfro provided him with the necessary information, and advised him to take a cab to the law enforcement center (LEC) due to his intoxication. During their conversation, Renfro learned Casarez drove a gold GMC Yukon. Renfro then left the scene.

[¶3] At approximately 11:45 p.m. Renfro observed a gold GMC Yukon parked outside the LEC, along with a man he believed to be Casarez standing inside the lobby. Renfro observed the unoccupied Yukon was running with its lights on. Renfro made contact with Casarez in the lobby, observing the same signs of impairment as earlier. Renfro began talking to Casarez to confirm or dispel his suspicion Casarez had driven to the LEC. During their conversation Casarez changed his story about getting to the LEC, initially stating he took a cab, but after being confronted about his vehicle outside, stating his friend drove him. Renfro also noticed a lanyard with keys hanging out of Casarez's pocket. Renfro informed Casarez he was under investigation for driving under the influence. He then requested Casarez complete a Horizontal Gaze Nystagmus (HGN) test. Renfro observed six of six clues during the HGN test. Following the HGN test, Renfro reviewed LEC security footage to confirm Casarez drove himself. Renfro then requested Casarez submit to a preliminary breath test and placed Casarez under arrest.

[¶4] Following the arrest, Renfro provided Casarez with an implied consent advisory, and requested a chemical breath test. Casarez refused to submit to the breath test. Renfro informed Casarez if he did not agree to take the test, he would be charged with criminal DUI refusal. Casarez maintained his refusal.

[¶5] The City of Jamestown charged Casarez with DUI-Refusal under Jamestown Municipal Code § 21-04-06(1)(e)(ii). After the district court rejected his motion to suppress and dismiss the charge, Casarez conditionally pled guilty, preserving his right to appeal. Casarez then filed his appeal.

II

[¶6] Casarez argues Jamestown Municipal Code § 21-04-06 is in direct conflict with N.D.C.C. § 39-08-01 after the Legislature's 2019 amendment to the statute. Casarez claims the Ordinance is void because it conflicts with a state statute.

[¶7] "Cities are creatures of statute and possess only those powers and authorities granted by statute or necessarily implied from an express statutory grant." City of Bismarck v. Fettig , 1999 ND 193, ¶ 4, 601 N.W.2d 247. Except as provided in a statute not relevant here, "an offense defined in this title or elsewhere by law may not be superseded by any city or county ordinance, or city or county home rule charter, or by an ordinance adopted pursuant to such a charter, and all such offense definitions shall have full force and effect within the territorial limits and other jurisdiction of home rule cities or counties." N.D.C.C. § 12.1-01-05. Section 12.1-01-05, N.D.C.C., "is an expression of the legislature's intent that state criminal laws are to have uniform application throughout the state." State, ex rel. Harris v. Lee , 2010 ND 88, ¶ 12, 782 N.W.2d 626. "[I]f the legislature enacts a statute which clearly conflicts with ordinances that have been enacted the statute prevails and the conflicting ordinances are superseded and rendered invalid." State ex rel. City of Minot v. Gronna , 79 N.D. 673, 59 N.W.2d 514, 531 (1953).

[¶8] The July, 2013 Ordinance at issue here reads:

"(1) A person may not drive or be in actual physical control of any vehicle upon a street or public or private areas to which the public has right of access for vehicular use in this city of any of the following apply:

....

(e) That individual refuses to submit to ...:

....

(ii) A chemical test, or tests, of the individual's blood, breath, or urine to determine the alcohol concentration or presence of other drugs, or combination thereof, in the individual's blood, breath, or urine, at the discretion of a law enforcement officer under Section 39-20-01 of the North Dakota Century Code [.]"

Jamestown Mun. Code Ord. 1409.

[¶9] In 2019 the North Dakota Legislature amended N.D.C.C. § 39-08-01. After the amendment, section 39-08-01 remains the same as the Ordinance except subdivision f was added to state law. Subdivision f states "Subdivision e does not apply to an individual unless the individual has been advised of the consequences of refusing a chemical test consistent with the Constitution of the United States and the Constitution of North Dakota." N.D.C.C. § 39-08-01.

[¶10] Casarez maintains the Ordinance directly conflicts with N.D.C.C. § 39-08-01 as amended in 2019. He argues the law presumes the Legislature does not perform idle acts. See Bickel v. Jackson , 530 N.W.2d 318, 320 (N.D. 1995). According to Casarez, by adding the limitation in subdivision f, the Legislature intended to limit DUI-Refusal prosecutions. However, we do not examine the intent of the Legislature unless a statute is ambiguous. N.D.C.C. § 1-02-05. This Court determined subdivision f is not ambiguous. State v. Long , 2020 ND 216, ¶¶ 11, 14, 950 N.W.2d 178. Thus, any claim that the Ordinance and statute are in conflict must be resolved by examining whether the Ordinance allows that which the statute explicitly prohibits. See State v. Westrum , 380 N.W.2d 187, 189 (Minn. Ct. App. 1986) (explaining an ordinance may not "authorize what a statute forbids"); McQuillin on Municipal Corporations , 3rd ed., § 23:7 ("an ordinance ordinarily cannot permit that which a statute forbids ...").

[¶11] Casarez agues because the Ordinance fails to include a provision equivalent to N.D.C.C. § 39-08-01(f), the City could prosecute an individual for refusing a chemical test request even if law enforcement failed to advise the motorist of the consequences of refusal consistent with the United States and North Dakota Constitutions. We reject Casarez's claim because the decisions of this Court and the United States Supreme Court regarding the constitutionality of prosecutions for refusals and unduly coercive advisories are inconsistent with his assertion. See Birchfield v. North Dakota , ––– U.S. ––––, 136 S.Ct. 2160, 2186, 195 L.Ed.2d 560 (2016) (explaining the Fourth Amendment prohibits law enforcement officers from conveying to a defendant the criminal consequences of refusal to submit to a blood test without a warrant); State v. Helm , 2017 ND 207, ¶ 16, 901 N.W.2d 57 (likening requests for urine submissions to requests for blood samples, explaining warrantless urine tests are not reasonable searches incident to valid arrests of suspected impaired drivers, and concluding the district court did not err in dismissing charges against defendant who refused to submit to warrantless urine test). Even before the Legislature's addition of subdivision f in 2019, this Court recognized a prohibition on prosecutions involving unconstitutionally coercive advisories. Further, the language in N.D.C.C. § 39-08-01(f) merely "establishes an unambiguous acknowledgement of the presumption that the statute, and the advisory therein, are in compliance with the state and federal constitutions." See Long , 2020 ND 216, ¶ 14, 950 N.W.2d 178.

[¶12] Casarez also would have us read the 2019 amendment to N.D.C.C. § 39-08-01 in isolation. In fact, that change was one of several modifications to the DUI laws. The Legislature also changed N.D.C.C. § 39-20-01 regarding implied consent advisories. There, the Legislature removed the statutory exclusionary rule in criminal DUI refusal cases. See 2019 N.D. Sess. Law Ch. 322, section 3. That change shown in legislative format provided the following:

a. The law enforcement officer shall inform the individual charged that North Dakota law requires the individual to take a chemical test to determine whether the individual is under the influence of alcohol or drugs and that refusal of the individual to submit to a test directed by the law enforcement officer may result in a revocation of the individual's driving privileges for a minimum of one hundred eighty days and up to three years. In addition, the law enforcement officer shall inform the individual refusal to take a breath or urine test is a crime punishable in the same manner as driving under the influence. If the officer requests the individual to submit to a blood test, the officer may not inform the individual of any criminal penalties until the officer has first secured a search warrant.

b. A test administered under this sectionIf an individual refuses to submit to testing under this section, proof of the refusal is not admissible in any criminal or administrative proceeding to determine a violation of section

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