State v. Abrahamson
| Decision Date | 17 December 1982 |
| Docket Number | No. 800,800 |
| Citation | 328 N.W.2d 213 |
| Parties | STATE of North Dakota, Plaintiff and Appellee, v. Alton J. ABRAHAMSON, Defendant and Appellant. Crim. |
| Court | North Dakota Supreme Court |
David Garcia, Devils Lake, for defendant and appellant.
Joseph Dietchman, State's Atty., Minnewaukan, for plaintiff and appellee State of North Dakota; no brief or appearance.
This is an appeal from Alton J. Abrahamson's conviction by a jury for operating a motor vehicle while under the influence of intoxicating liquor in violation of Section 39-08-01, N.D.C.C. Abrahamson contends the trial court erred by denying his motion to suppress chemical-analysis evidence showing the amount of alcohol in his blood, by denying his objection to testimony by a State's witness that he admitted he was driving the vehicle, and by denying his motion for a mistrial. We affirm Abrahamson's conviction.
Abrahamson farms near Maddock, North Dakota. On a Saturday night in July of 1981 Abrahamson left home at 11:30 p.m. to attend a party at another farm near Maddock. Abrahamson drank at least five beers while at the party. He left for home at 4 a.m.
As Abrahamson approached and tried to turn at a "T" intersection the pickup he was driving slid off the gravel road and turned on its side. Abrahamson alleges his brakes failed to work properly. Abrahamson climbed out of the vehicle and was picked up by a friend who had left the same party. He was taken to the Harvey hospital where he received eight or nine stitches for a laceration.
Around 4:30 a.m. on Sunday, the Maddock police notified the Benson County sheriff's office of the one-vehicle accident. Officer Deck, a Benson County deputy sheriff, went to the accident scene to investigate. Abrahamson had already left the scene. At Officer Deck's request, the Harvey police chief, Officer Hoffer, went to the hospital to see Abrahamson. Officer Hoffer noticed that Abrahamson smelled of liquor, but he noticed no other indication of intoxication. Officer Hoffer asked Abrahamson to submit to a blood-alcohol test and he agreed. Abrahamson was told there would be "possible charges," but he was not arrested.
Officer Hoffer told Abrahamson he would lose his driver's license if he refused to submit to the test. After Abrahamson signed a hospital consent form, a registered nurse drew the blood according to normal hospital procedures. The sample was sent to the State Laboratory. A chemist employed by the State testified that Abrahamson's blood-alcohol content was .15 percent, or .05 percent greater than the legal limit.
At 9 a.m. on Sunday, Abrahamson called the sheriff's office for permission to move his vehicle. On the following Tuesday or Wednesday night, Officer Deck went to Abrahamson's farm at his request to fill out an accident-report form. Abrahamson told the officer he was driving the vehicle during the accident. After completing the form, Officer Deck issued Abrahamson a ticket for driving while under the influence of intoxicating liquor. Officer Deck testified at trial that she issued the ticket because she knew Abrahamson owned the vehicle, the vehicle had come from the direction of a party, the tracks were on the wrong side of the road, and the vehicle was involved in the one-vehicle rollover.
Before the trial, Abrahamson moved to suppress the results of the blood-alcohol test and his admission that he was driving the vehicle. After the noon recess, Abrahamson moved for a mistrial based upon the conduct of the judge and the prosecutor during lunch. All these motions were denied. Abrahamson now contends each denial by the trial judge was error. 1
The first issue raised by Abrahamson involves the court's denial of his motion to suppress evidence of the amount of alcohol in his blood as shown by chemical analysis. Abrahamson makes three arguments in his attempt to show that the trial court erred.
His first argument is that the evidence should have been suppressed because the test was administered before he was arrested, contrary to Section 39-20-01, N.D.C.C. Section 39-20-01, the "implied consent" statute, states:
The trial judge correctly determined that this implied-consent statute was inapplicable because Abrahamson actually consented to the taking of the blood test. In Wanna v. Miller, 136 N.W.2d 563 (N.D.1965), this court determined that Chapter 39-20, N.D.C.C., does not apply when a person voluntarily submits to the extraction of the blood specimen.
Proceedings under Chapter 39-20 are civil in nature. "The purpose of the implied consent law is to discourage individuals from driving an automobile while under the influence of intoxicants; to revoke the driving privileges of those persons who do drive while intoxicated; and to provide an efficient means of gathering reliable evidence of intoxication or nonintoxication." Hammeren v. North Dakota State Highway Comr., 315 N.W.2d 679, 681 (N.D.1982), quoting Asbridge v. North Dakota State Highway Comr., 291 N.W.2d 739, 750 (N.D.1980). The proceedings under Chapter 39-20 are separate and distinct from criminal proceedings. The implied-consent statute and Section 39-20-04, N.D.C.C., pertain to a person's refusal to take a blood-alcohol test after he has been arrested and the resulting revocation of his driver's license not the admissibility of such evidence in a criminal trial. The judge correctly determined that Section 39-20-01 was inapplicable in this action.
Abrahamson's second argument is that his voluntary consent to the blood test is vitiated because he was deceived by the law-enforcement officer. The officer told Abrahamson he would lose his driver's license if he refused to submit to the blood test. Abrahamson stated he based his consent upon this warning. 2
The extraction of a blood sample to determine blood-alcohol content is a "search" within the meaning of the Fourth Amendment. Schmerber v. California, 384 U.S. 757, 86 S.Ct. 1826, 16 L.Ed.2d 908 (1966). The Fourth Amendment's function is to constrain against compelled intrusions into the body which are made in an improper manner or which are not justified in the circumstances. Schmerber, supra.
Extraction of blood samples for testing is commonplace and for most people involves little risk, trauma, or pain. The quantity of blood extracted is minimal and the sample can effectively be used to determine the degree to which a person is under the influence of alcohol. Schmerber, supra. The record in the instant case shows that the sample taken from Abrahamson was taken in a reasonable manner. A registered nurse took the blood sample in the hospital according to accepted medical practices.
Because the taking of a blood sample is a search, the police officer needs to be justified in his request by obtaining a search warrant or meeting an exception to the search-warrant requirement. See State v. Matthews, 216 N.W.2d 90 (N.D.1974). One of the exceptions to the warrant requirement is that the person consent to the search. State v. Swenningson, 297 N.W.2d 405 (N.D.1980).
The Fourth Amendment requires that consent to a search be voluntary. Schneckloth v. Bustamonte, 412 U.S. 218, 93 S.Ct. 2041, 36 L.Ed.2d 854 (1973); State v. Page, 277 N.W.2d 112 (N.D.1979). To determine what constitutes "voluntary consent" we consider the totality of the circumstances. State v. Metzner, 244 N.W.2d 215 (N.D.1976). In the instant case the police officer's statement may have led Abrahamson to mistakenly believe he would lose his driver's license if he refused to consent to the blood-alcohol test. Although the officer probably did not intentionally try to deceive Abrahamson, the result may have been the same. This misleading statement by the officer is one factor to be considered in determining the voluntariness of Abrahamson's consent.
In State v. Hall, 297 N.W.2d 80 (Iowa 1980), cert. denied 450 U.S. 927, 101 S.Ct. 1384, 67 L.Ed.2d 359 (1981), the defendant claimed trickery was used to obtain his consent for withdrawal of body specimens. The defendant asked a police officer if the victim had died. The officer replied that he did not know, when in fact he did know she was dead. The Iowa court stated that devious activity by authorities is one of the circumstances relevant to the issue of voluntariness. The Iowa court cited an earlier case disapproving of deception by representatives of the State, but stated that deception alone did not render the consent involuntary unless the deceiving act amounted to a deprivation of due process. The Iowa court concluded that "this deception did in fact occur, but we consider it only as part of the totality of circumstances in determining voluntariness; it is insufficient alone to vitiate the consent." Hall, supra, 297 N.W.2d at 89.
In the case at hand we cannot say that the police officer's behavior was "devious," and we do not condone practices by State law-enforcement officers which may deceive criminal suspects. The alleged deception is the only issue raised by Abrahamson in his attempt to show his consent was not voluntary. During cross-examination the State's Attorney questioned Abrahamson regarding the blood test as follows:
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...statute's purpose by enabling the officer to obtain important and accurate evidence18 through nonviolent means. Cf. State v. Abrahamson, 328 N.W.2d 213, 215 (N.D. 1982) ("[The implied consent statute] does not apply when a person voluntarily submits to the extraction of a blood specimen.").......
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