City of W. Fargo v. Le Ekstrom

Decision Date12 February 2020
Docket NumberNo. 20190079,20190079
Citation938 N.W.2d 915
Parties CITY OF WEST FARGO, Plaintiff and Appellee v. Mandie Le EKSTROM, Defendant and Appellant
CourtNorth Dakota Supreme Court

Stephen R. Hanson II (argued), Assistant City Attorney, and Kelsey Stock (on brief), third-year law student, under the Rule on Limited Practice of Law by Law Students, West Fargo, ND, for plaintiff and appellee.

Luke T. Heck, Fargo, ND, for defendant and appellant.

McEvers, Justice.

[¶1] Mandie Le Ekstrom appeals from a criminal judgment entered after a jury found her guilty of driving under the influence. We conclude the district court did not err in denying her motion to dismiss on state and federal constitutional double jeopardy grounds. We further conclude, however, the court erred in sentencing her because the jury did not find her chemical breath test result was .16 or greater. We affirm her conviction but reverse and remand for resentencing.


[¶2] In February 2018, the City of West Fargo charged Ekstrom in municipal court with driving under the influence after a chemical breath test indicated she was driving with an alcohol concentration in excess of the legal limit. She requested the case be transferred to district court for a jury trial. During the first trial in October 2018, Ekstrom moved for a mistrial after the City’s police officer testified to the chemical breath test results before the chemical test results had been offered into evidence. The court reserved its ruling, allowing the City to proceed and offer the chemical test result into evidence.

[¶3] When the City offered the chemical breath test, however, Ekstrom objected arguing the City failed to offer evidence that the Intoxilyzer 8000 used in her case was installed by a field inspector under the approved method for operating the machine. See N.D.C.C. § 39-20-07(5) ; Ell v. Dir., Dep't of Transp. , 2016 ND 164, 883 N.W.2d 464. The court sustained her objection and granted her mistrial motion based on the City’s failure to provide proper foundation for the test result’s admission.

[¶4] The district court gave the City ten days to schedule and notice a new trial date. Ekstrom objected on double jeopardy grounds and moved to dismiss the charge. She subsequently filed her motion to dismiss the case, arguing further prosecution would violate her double jeopardy rights. The City resisted the motion. After an October 29, 2018, hearing, the district court denied her motion to dismiss. This Court also denied her petition for a supervisory writ, see Ekstrom v. Bailey, et al. , No. 20180438. The district court held a second trial in February 2019.

[¶5] At the second trial the district court denied Ekstrom’s motions in limine and allowed the City to introduce additional evidence and expert witness testimony not offered during the first trial. With proper foundation the court admitted the chemical breath test result into evidence.

[¶6] Ekstrom objected to the elements in the jury instructions on grounds the City’s complaint only charged her with driving under the influence and did not charge her with aggravated DUI. She further argued the jury was required to make a finding regarding whether her alcohol concentration exceeded .16. The court overruled her objection, concluding the .16 finding was not an essential element of aggravated DUI.

[¶7] The jury found Ekstrom guilty of driving under the influence. In sentencing her, the district court elevated her conviction from DUI to aggravated DUI. A criminal judgment was subsequently entered.


[¶8] Ekstrom argues the district court erred in denying her motion to dismiss on state and federal constitutional double jeopardy grounds.

[¶9] The double jeopardy provisions of the federal and state constitutions and state law prohibit successive prosecutions and punishments for the same criminal offense. U.S. Const. amend. V ; N.D. Const. art. I, § 12 ; N.D.C.C. § 29-01-07. In a jury trial, jeopardy attaches when the jury is empaneled and sworn. See Day v. Haskell , 2011 ND 125, ¶ 8, 799 N.W.2d 355. However, double jeopardy does not always prohibit retrial when the first trial has terminated before a verdict is rendered. See id. at ¶ 9 ; State v. Voigt , 2007 ND 100, ¶ 12, 734 N.W.2d 787. "Each case in which a double jeopardy violation is asserted must turn upon its own facts." Id. at ¶ 13. A mistrial that is declared with the defendant’s consent, such as when the defendant moves for a mistrial without having been goaded into doing so by misconduct attributable to the prosecutor, generally does not bar a later prosecution. Voigt , at ¶ 18.

[¶10] In Oregon v. Kennedy , 456 U.S. 667, 675-76, 102 S.Ct. 2083, 72 L.Ed.2d 416 (1982), the Supreme Court explained:

Prosecutorial conduct that might be viewed as harassment or overreaching, even if sufficient to justify a mistrial on defendant’s motion, therefore, does not bar retrial absent intent on the part of the prosecutor to subvert the protections afforded by the Double Jeopardy Clause. A defendant’s motion for a mistrial constitutes "a deliberate election on his part to forgo his valued right to have his guilt or innocence determined before the first trier of fact." United States v. Scott , 437 U.S. 82, 93, 98 S. Ct. 2187, 2195, 57 L.Ed.2d 65 (1978). Where prosecutorial error even of a degree sufficient to warrant a mistrial has occurred, "[t]he important consideration, for purposes of the Double Jeopardy Clause, is that the defendant retain primary control over the course to be followed in the event of such error." United States v. Dinitz, supra , 424 U.S. at 609, 96 S. Ct. at 1080. Only where the governmental conduct in question is intended to "goad" the defendant into moving for a mistrial may a defendant raise the bar of double jeopardy to a second trial after having succeeded in aborting the first on his own motion.

"[W]e do hold that the circumstances under which such a defendant may invoke the bar of double jeopardy in a second effort to try him are limited to those cases in which the conduct giving rise to the successful motion for a mistrial was intended to provoke the defendant into moving for a mistrial." Kennedy , at 679, 102 S.Ct. 2083.

[¶11] Ekstrom argues that double jeopardy barred the retrial in her case. Although she moved for the mistrial, she asserts the City’s acts and omissions bar her retrial. She contends double jeopardy protects a defendant from a second prosecution when prosecutorial overreach provokes a mistrial and affords the prosecution a more favorable opportunity to convict a defendant. See Kennedy , 456 U.S. at 674, 102 S.Ct. 2083. Ekstrom also asserts a broader understanding of what constitutes prosecutorial overreach or harassment, relying in part on Downum v. United States , 372 U.S. 734, 736, 83 S.Ct. 1033, 10 L.Ed.2d 100 (1963), and U.S. v. Dinitz , 424 U.S. 600, 611, 96 S.Ct. 1075, 47 L.Ed.2d 267 (1976). We note however, one court has said that to the extent these cases invoke a broader "harassment" standard, they were overruled by Kennedy . See State v. Butler , 262 Conn. 167, 810 A.2d 791, 796-97 (2002).

[¶12] Despite the fact that Ekstrom made the motion for mistrial, she argues the City not only caused the mistrial, but also acquiesced to the motion by not attempting to cure the foundational deficiency or objecting to the motion. She contends the City deliberately asked the broad question of the police officer, for which a highly prejudicial answer was foreseeable, i.e. , the inadmissible chemical test result. She argues this Court should not adopt the Kennedy standard and that, even if adopted, Kennedy and subsequent law does not preclude dismissal in this case. She essentially asserts the City’s conduct in asking the general question of the police officer goaded or provoked her to move the district court for a mistrial.

[¶13] Ekstrom further contends the North Dakota Constitution may provide even greater protections under its double jeopardy provision. See State v. Herrick , 1999 ND 1, ¶ 22, 588 N.W.2d 847. For this proposition she relies on Justice Levine’s reasoning in her dissent in State v. Jacobson , 545 N.W.2d 152, 156 (N.D. 1996). Ekstrom asserts the City "clearly" acted with indifference towards the mistrial committing prosecutorial overreach at a minimum, if not outright misconduct.

[¶14] In Jacobson , it was argued that North Dakota’s constitution provided greater protections for purposes of double jeopardy than under federal constitutional law. 545 N.W.2d at 153. We declined to overrule settled law, stating the framers of our state constitution did not intend an interpretation different than the Double Jeopardy Clause of the United States. Id. (citing State v. Allesi , 216 N.W.2d 805, 817-18 (N.D. 1974) ). Other than citing to Justice Levine’s dissenting opinion, Ekstrom offers no new legal or factual support that North Dakota’s double jeopardy clause was intended to provide more protection than the double jeopardy clause under the federal constitution.

[¶15] We hold the double jeopardy standard under Kennedy is the proper standard in North Dakota. See Voigt , 2007 ND 100, ¶ 18, 734 N.W.2d 787. To the extent Ekstrom now argues about the requisite intent under the Kennedy standard to provoke her into moving for a mistrial, she did not raise that in the district court. Rather, she argued that double jeopardy applied, regardless of the City’s intent, because the City’s misconduct caused the mistrial. She argued the City and the testifying police officer knew or had reason to know not to discuss the specific chemical test results, when the test itself was inadmissible at trial without the correct foundational documentation.

[¶16] Here, the facts and circumstances presented in this case do not bar Ekstrom’s retrial. As asserted by the City, the police officer was the City’s first witness early in the trial, it had no reason to provoke a mistrial at that early stage, and it did not intend to provoke Ekstrom’s mistrial motion. The City asserts the officer’s...

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