City of Jamestown v. Erdelt

• Decision Date: 08 March 1994
• Docket Number: Cr. N
• Citation: 513 N.W.2d 82
• Parties: CITY OF JAMESTOWN, Plaintiff and Appellant, v. Jennifer R. ERDELT, Defendant and Appellee. o. 930132.
• Court: North Dakota Supreme Court

Page 82

513 N.W.2d 82

CITY OF JAMESTOWN, Plaintiff and Appellant, v. Jennifer R. ERDELT, Defendant and Appellee.

Cr. No. 930132.

Supreme Court of North Dakota.

March 8, 1994.

Lawrence P. Kropp (argued), City Prosecutor, Jamestown, for plaintiff and appellant.

Darold A. Asbridge, P.C. (argued), Bismarck, for defendant and appellee.

MESCHKE, Justice.

The City of Jamestown appeals from an order dismissing a DUI charge against Jennifer Erdelt because the City illegally jailed her without bond after she was arrested. We affirm.

I.

At about 1:00 a.m. on April 24, 1992, Jennifer Erdelt was arrested for driving under the influence of alcohol. The arresting officer told Erdelt "she would be detained in the Stutsman County Corrections Center for a period of eight hours and be required to post a $300.00 bond." The officer also told Erdelt's boyfriend Mark Stroh, who was with her and willing to post bond for her immediately, that Erdelt "was going to serve a minimum of eight hours of detox." When Stroh posted bond for Erdelt at 7:00 a.m., the Corrections Center refused to release her until 9:00 a.m., eight hours after she was arrested.

Erdelt moved to dismiss the DUI charge. She argued that her detention was illegal when bond was immediately available after her arrest. She also argued the unlawful detention prejudiced her right to a fair trial. The trial court granted the motion, holding that the City did not comply with NDCC 5-01-05.1 and had illegally deprived Erdelt of her freedom. ¹

On appeal, the City asserts that it substantially complied with the statute. The City argues that every person arrested for DUI is "apparently intoxicated" and a threat to themselves or others. The City argues that its only duty when detaining a person arrested for DUI is to notify the person's family of the incarceration. The City also argues the Corrections Center's policy imposing a minimum eight hours detention for detoxification complies with the law.

Erdelt disagrees with the City's assumptions and interpretation of NDCC 5-01-05.1. She argues that a mandatory minimum period of detention for detoxification violates her constitutional right to bail. She also argues that the City has illegally replaced the individualized determination of dangerousness required by NDCC 5-01-05.1 with an unlawful mandatory eight-hour detention policy. We agree.

II.

Erdelt argues that she should have been released on bond to her boyfriend immediately, rather than jailed eight hours for detoxification. We recently rejected court-ordered mandatory minimum periods of detention for all DUI arrestees because the bail statute, NDCC 29-08-02, did not permit municipal courts to authorize minimum periods of detention without bail, and because NDCC 5-01-05.1 requires individualized determinations of the degree of intoxication and of dangerousness. City of Fargo v. Stutlien, 505 N.W.2d 738, 743 (N.D.1993). In this case, we again review those procedures that officers must follow under NDCC 5-01-05.1, as Stutlien says, "to adequately protect the safety of the public and persons found to be apparently intoxicated."

To jail an "apparently intoxicated person," NDCC 5-01-05.1 directs several mandatory and discretionary procedures that have been explained before in the McCroskey opinions. An officer must "make the observations necessary to determine whether or not the subject is apparently intoxicated." McCroskey v. Fettes (McCroskey II), 310 N.W.2d 773, 775 (N.D.1981). "The actual determination is discretionary as long as it is based upon observations" made by the officer. McCroskey II at 776. An apparently intoxicated person can be taken to their home, to a local hospital, or to jail for detoxification. McCroskey v. Cass County (McCroskey I), 303 N.W.2d 330, 335 (N.D.1981). Jail detention is permitted only if the person constitutes a danger to self or others. McCroskey I at 335. See also McCroskey v. Fettes (McCroskey III), 336 N.W.2d 645 (N.D.1983). As the McCroskey opinions explain, this determination is also left to the officer's discretion, so long as it is reasonably based on observations actually made by the officer.

When the person is jailed, the officer must notify the person's family, "presumably so the family may transfer the apparently intoxicated person from jail to home." Stutlien, 505 N.W.2d at 743. We explained in McCroskey I, 303 N.W.2d at 335, "[n]o discretion is involved in executing this function."

The trial court found that the arresting officer jailed Erdelt "without going through any of the mental processes anticipated in 5-01-05.1," including failure to observe whether Erdelt was apparently intoxicated. Instead, the officer merely relied on the City's practice of detaining all DUI arrestees for eight hours. The City argues the officer must have believed that Erdelt was intoxicated because he signed the detoxification request form. This record shows otherwise. Although the form refers to NDCC 5-01-05.1, the trial court concluded from the officer's testimony that he routinely jailed all DUI arrestees for detoxification, without first deciding whether each appeared intoxicated and dangerous.

The City argues that the appearance of intoxication may be inferred from the arrest for DUI. However, the law is that a person can be under the influence without being intoxicated. State v. Hanson, 73 N.W.2d 135, 139 (N.D.1955). We conclude that, although the arrest for DUI is some evidence of intoxication, the City may not assume everyone arrested for DUI is intoxicated. Before jail detention under NDCC 5-01-05.1, the officer must independently observe whether the person appears intoxicated and dangerous.

Danger to the public or to self is a precondition to jail detention under the statute. To lawfully jail Erdelt, the officer had to conclude she was a danger to herself or the public. The City argues that someone driving under the influence will always be some danger to herself or others. There is some plausibility in that position since the drunk driving laws are designed to protect the public from impaired drivers. However, after the driver is arrested, tested, and posts bond, the officer's main concern is to ensure the person does not drive again until no longer under the influence. If the arrestee posts bond and goes with a responsible person, that danger is normally minimal. We construe NDCC 5-01-05.1 to require that, absent extraordinary circumstances, the person must be released on bond to go with a responsible adult. As we pointed out in Stutlien, the notice requirement of the statute encourages this result by requiring notice to the arrestee's family so that they can arrange bond and help the arrestee.

If the officer had made an independent and individualized determination of Erdelt's dangerousness, her release on bond to Stroh might have diminished any danger to the public or herself. Instead, the officer believed he was required to jail Erdelt for detoxification, and told Stroh any effort to get her released on bond would be futile for eight hours. As the McCroskey series teach and Stutlien reiterates, Erdelt's mandatory jail detention was unlawful.

The City also interprets NDCC 5-01-05.1 to authorize the Corrections Center's policy of holding any person detained for DUI for eight hours, regardless of when bond is posted or if they are a danger to themselves or the public. This expansive interpretation of the City's powers threatens the right to bail guaranteed under Article I, Section 11 of the North Dakota Constitution. ² We interpret statutes to avoid constitutional questions if possible. Little v. Graff, 507 N.W.2d 55, 59 (N.D.1993). As we held in Stutlien, 505 N.W.2d at 743, "[i]n order to give meaning to both N.D.C.C. Secs. 29-08-02 and 5-01-05.1, we conclude that N.D.C.C. Sec. 29-08-02 was intended to facilitate an administrative procedure for admission to bail...