State v. Allery, Cr. N

• Decision Date: 11 July 1985
• Docket Number: Cr. N
• Citation: 371 N.W.2d 133
• Parties: STATE of North Dakota, Plaintiff and Appellant, v. Eugene Louis ALLERY, Defendant and Appellee. os. 1056, 1057.
• Court: North Dakota Supreme Court

Page 133

371 N.W.2d 133

STATE of North Dakota, Plaintiff and Appellant, v. Eugene Louis ALLERY, Defendant and Appellee.

Cr. Nos. 1056, 1057.

Supreme Court of North Dakota.

July 11, 1985.

Lee A. Christofferson, State's Attorney, Rolla, for plaintiff and appellant State.

Swain Benson, Bottineau, for defendant and appellee.

VANDE WALLE, Justice.

The State appealed from an order of the district court, Rolette County, suppressing the results of a blood-alcohol test administered to Eugene Louis Allery, who was charged with driving while under the influence of alcohol and with negligent homicide. We reverse.

On March 26, 1984, Eugene Allery and a passenger were involved in a one-car accident on Highway No. 5 west of Belcourt, North Dakota. The vehicle Allery was driving left the highway, rolled over, and came to rest on its side with Allery trapped inside. The passenger was thrown from the vehicle and subsequently died as a result of his injuries. There were no known witnesses to the accident.

Highway Patrolman Bradford Berce arrived at the accident scene at 8:50 p.m. Rescue crews were summoned in order to extract Allery from the wreck. The rescue crew completed extraction approximately one hour after Patrolman Berce arrived at the scene.

Patrolman Berce did not conduct an investigative interview with Allery because of the complicated nature of the extraction process and because of concern over Allery's injuries. Patrolman Berce did, however, learn Allery's name and the direction of travel.

After Allery was released from the vehicle, he offered information that he had been at the Garden Top bar in Dunseith and had consumed four beers. Allery stated that he had been driving because the passenger, who owned the vehicle, was drunk.

Patrolman Berce was unable to conduct any field sobriety tests at the accident scene but he made a number of observations about Allery's physical condition: Allery's breath smelled of alcohol; his eyes were bloodshot; and his speech was slurred. Patrolman Berce's search of the accident scene failed to uncover any alcoholic beverage containers.

Allery was transported to the Belcourt hospital by ambulance. After arriving at the hospital, Patrolman Berce placed Allery under arrest and charged him with driving while under the influence of alcohol (hereinafter D.U.I.). A blood-alcohol test was administered to Allery at approximately 11 p.m. by hospital personnel. The test resulted in a 0.19 percent blood-alcohol reading. The State subsequently filed an information charging Allery with D.U.I. in violation of Section 39-08-01(1)(a) and (b), N.D.C.C.

On April 5, 1984, the State issued a criminal complaint charging Allery with negligent homicide. Allery entered a not-guilty plea to the negligent-homicide charge as well as to the D.U.I. charge. In accordance with Section 39-08-01.2, N.D.C.C., the district court ordered the D.U.I. charge and the negligent-homicide charge consolidated for trial.

Allery subsequently filed a motion with the district court to suppress the blood-test result. At the suppression hearing, the parties stipulated that the blood sample had been taken more than two hours after Allery had driven the vehicle. The district court granted Allery's motion to suppress because the test was not performed within two hours as required by Section 39-08-01(1)(a). The district court, in ordering suppression of the blood-test result, stated that the blood test "is hereby suppressed in any and all things as evidence in this matter."

Subsequent to the suppression order the State filed a notice of appeal and "statement of the prosecuting attorney" as required by Section 29-28-07(5), N.D.C.C.

Before we reach the issues raised by the State on appeal, we consider Allery's contention that the State's appeal from the trial court's order suppressing the result of the blood test should be dismissed.

The State brought this appeal pursuant to Section 29-28-07(5), N.D.C.C., which requires the prosecuting attorney to file a statement asserting that the suppression order has rendered the evidence in the case insufficient as a matter of law or has effectively destroyed any possibility of prosecuting the defendant. We held in State v. Dilger, 322 N.W.2d 461, 463 (N.D.1982), that when the State takes an appeal pursuant to Section 29-28-07(5), "the prosecuting attorney should, in addition to the statement prescribed by Sec. 29-28-07(5), provide this court with an explanation, not inconsistent with the record, stating the reasons why the trial court's order has effectively destroyed any possibility of prosecuting the criminal charge to a conviction." We stated in Dilger, at 463, "The prosecuting attorney's explanation should be included either with the statement filed pursuant to Sec. 29-28-07(5), N.D.C.C., or in the State's brief filed for the purposes of the appeal."

When the State appeals from a suppression order, it has the burden to establish that further prosecution without the suppressed evidence would be futile and not merely more difficult. See State v. Rambousek, 358 N.W.2d 223 (N.D.1984); State v. Kisse, 351 N.W.2d 97 (N.D.1984).

Our standard of review in appeals from suppression orders reconciles two important interests: (1) the prosecuting attorney's discretion in evaluating the actual effect of the suppression order, and (2) the Legislature's decision to grant only a limited right of appeal from suppression orders. See State v. Kisse, supra. ¹

In State v. Dilger, supra, 322 N.W.2d at 463, we explained that our review provides the utmost deference for the prosecutor's judgment in evaluating the need for the suppressed evidence:

"... [O]ur review of the prosecutor's statement and explanation must be guided by the utmost deference for the prosecutor's judgment in evaluating the remaining proof. The prosecuting attorney is in a better position than either his opponent or this Court to evaluate the State's chances of succeeding at trial with the available evidence. Our chief concern is that the prosecutor discharge his statutory obligation of determining whether or not the suppressed evidence is critical to the State's case. We are reluctant to dismiss the State's appeal unless the prosecution's determination of the need for the suppressed evidence is clearly inconsistent with the record or is without foundation in reason or logic."

In this case the statement required by Section 29-28-07(5) indicates that the suppression order makes it impossible for the State to obtain a conviction on either of the charges. ² The State does have the testimony of Officer Berce that Allery smelled of alcohol, slurred his speech, and had bloodshot eyes, and the admission of Allery that he drank four beers. However, the State argues that because it lacks any evidence of field sobriety or "alert" type...