City of Langdon v. Delvo
| Decision Date | 16 July 1986 |
| Docket Number | No. 1151,1151 |
| Citation | 390 N.W.2d 51 |
| Parties | The CITY OF LANGDON, Plaintiff and Appellee, v. Jon David DELVO, Defendant and Appellant. Crim. |
| Court | North Dakota Supreme Court |
Cameron D. Sillers, State's Atty., Langdon, for plaintiff and appellee.
Fleming & DuBois, Cavalier, for defendant and appellant; argued by Neil W. Fleming.
In this appeal from a jury verdict finding Jon David Delvo guilty of driving while under the influence (DUI), we conclude that the trial court did not err in admitting into evidence intoxilyzer test results, or in refusing to submit to the jury the question of probable cause.
At 6:45 a.m., while returning from a graduation party, Delvo fell asleep at the wheel and collided with the rear end of another vehicle. Delvo transported the other driver to the hospital and returned to the accident scene where Langdon police officer Platz was investigating the accident. After Delvo explained how the collision occurred, Platz administered several field sobriety tests and then arrested Delvo for DUI. A subsequent intoxilyzer test indicated Delvo's blood alcohol concentration at 0.16 per cent.
Following his conviction for DUI in municipal court, Delvo appealed to county court and moved to suppress the results of the intoxilyzer test. The suppression motion was denied and Delvo was convicted by a jury of DUI.
We first address Delvo's contention that the county court erred in failing to suppress the results of the intoxilyzer test. Delvo argues that officer Platz did not have probable cause to arrest him for DUI and thus the test results were inadmissible as the product of an illegal search and seizure.
Probable cause exists when the facts and circumstances within a police officer's knowledge and of which he had reasonably trustworthy information are sufficient to warrant a person of reasonable caution to believe that an offense has been or is being committed. Moser v. North Dakota State Highway Com'r, 369 N.W.2d 650 (N.D.1985).
Officer Platz testified that as he spoke with Delvo he detected an odor of alcohol and observed that his eyes were bloodshot. Platz admitted that at that point he did not have probable cause to believe Delvo was under the influence, but that Delvo's condition, and the circumstances surrounding the accident, were sufficiently suspicious to warrant administering field sobriety tests. Based upon Delvo's performance of the tests, as well as his physical manifestations, Platz concluded there was probable cause that Delvo was under the influence and made the arrest.
During cross-examination Platz testified that in his investigation report he indicated Delvo had performed "well" on the field sobriety tests. Seizing upon this affirmative adverb, Delvo argues that, if, prior to the field sobriety tests, Platz did not have probable cause to believe Delvo was under the influence, and, if Delvo performed the field sobriety tests "well," it follows that Delvo's execution of the field sobriety tests could not elevate Platz's pre-test mere suspicion of DUI to the probable cause needed to arrest, and to justify the subsequent intoxilyzer test.
Delvo places too much faith on Platz's use of the word "well." Platz acknowledged his "poor choice" of language but explained that what he meant to convey was that Delvo was able to physically perform the tests; not that he performed them well enough to erase the suspicion he was under the influence. Platz specifically testified that Delvo failed the field sobriety tests, and that that failure, in conjunction with his other observations indicating DUI, gave him probable cause to arrest.
In reviewing the county court's...
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