State v. Anderson, Cr. N

• Decision Date: 21 July 1983
• Docket Number: Cr. N
• Citation: 336 N.W.2d 634
• Parties: STATE of North Dakota, Plaintiff and Appellant, v. Fern E. ANDERSON, Defendant and Appellee. o. 915.
• Court: North Dakota Supreme Court

Page 634

336 N.W.2d 634

STATE of North Dakota, Plaintiff and Appellant, v. Fern E. ANDERSON, Defendant and Appellee.

Cr. No. 915.

Supreme Court of North Dakota.

July 21, 1983.

James Twomey, Asst. State's Atty., Fargo, for plaintiff and appellant State of North Dakota.

William D. Yuill, of Pancratz, Yuill, Wold, Johnson & Feder, Fargo, for defendant and appellee.

VANDE WALLE, Justice.

The State appealed from an order of the district court, Cass County, suppressing the results of chemical testing performed on blood and urine samples taken from the defendant, Fern E. Anderson, following an automobile accident in which James T. Johnson was killed. We affirm.

I

The accident occurred on May 30, 1982, in the eastbound traffic lane of Interstate 94 on the bridge joining Fargo, North Dakota, and Moorhead, Minnesota. Anderson was operating an automobile in an unlawful manner by going west in the eastbound lane of traffic when she collided with a vehicle driven by James Johnson, who was traveling east in the eastbound traffic lane.

Sergeant Gene Johnson of the North Dakota Highway Patrol was dispatched to the scene of the accident where he found James Johnson dead and Anderson suffering from minor injuries. In an attempt to determine the details of the accident, Sergeant Johnson began interviewing Anderson, who turned out to be very uncooperative, and observed that (1) she was confused, (2) she had slurred speech, and (3) a strong odor of alcohol emanated from her.

These observations as well as Anderson's unwillingness to cooperate with the investigation of the accident led Sergeant Johnson to believe she was under the influence of alcohol. As a result, he told Anderson she would be charged with driving while under the influence, but he did not tell her she was under arrest.

Anderson was then taken to a local hospital by Officer Lawyer of the Fargo police department so that Anderson would receive treatment for her injuries, and Lawyer could obtain blood and urine samples from Anderson. Anderson was admitted to the hospital, where she remained after Officer Lawyer left with the fluid samples. A warrant for Anderson's arrest was issued on June 4, 1982.

The State subsequently charged Anderson with committing the offense of manslaughter in violation of Section 12.1-16-02(1), North Dakota Century Code, for recklessly causing the death of James T. Johnson by driving the wrong way, against traffic, on Interstate 94 and colliding with Johnson's car. Anderson moved the district court to have the urine and blood test results suppressed, and after a hearing on the matter the trial court granted Anderson's motion.

II

The first issue we consider is whether or not the State's appeal from the trial court's order suppressing evidence should be dismissed.

Before the State may appeal from an order suppressing evidence the prosecuting attorney must file with the district court a statement asserting that without the evidence which has been suppressed the proof available to the State with respect to the crime charged has become either "(1) insufficient as a matter of law, or (2) so weak in its entirety that any possibility of prosecuting such charge to a conviction has been effectively destroyed." Sec. 29-28-07(5), N.D.C.C.

The State in this case has alleged that without the results of the chemical analysis of the blood and urine samples the possibility of prosecuting the charge of manslaughter to a conviction has been effectively destroyed.

In State v. Dilger, 322 N.W.2d 461, 463 (N.D.1982), we said, with respect to the requirements which Section 29-28-07(5) imposes on the State in an appeal from a suppression order,

"... 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."

In satisfaction of this requirement, the State contends in its brief that without the results of the chemical testing performed on the blood and urine samples, which showed the percent by weight of alcohol in Anderson's body fluids at the time they were obtained was .26 of one percent, it may not be able to prove that Anderson was intoxicated at the time of the accident.

According to the State, it is essential to show that Anderson was intoxicated when the accident occurred because Anderson is an older woman with an apparent history of unusual behavior which may evoke jury sympathy and make it difficult to prove she acted recklessly.

In order that conduct be considered reckless it must create a high degree of risk of which the actor is actually aware. State v. Trieb, 315 N.W.2d 649 (N.D.1982). However, awareness of the risk is not required where its absence is due to self-induced intoxication. Sec. 12.1-02-02(1)(c), N.D.C.C. The State believes it would be extremely difficult (1) to prove recklessness without first proving Anderson was intoxicated, and (2) to prove Anderson was intoxicated without the results from the analysis of the blood and urine samples.

According to Anderson, the suppressed evidence is not essential to prove recklessness because the State may show intoxication through the testimony of Sergeant Johnson, who observed Anderson immediately after the accident and concluded she was intoxicated. Furthermore, Anderson contends the fact she was driving the wrong way on the Interstate is some indication of reckless conduct.

Anderson certainly is correct that Sergeant Johnson's observations and her own actions which caused the accident are some evidence of intoxication and recklessness. However, we will not dismiss the State's appeal unless the prosecutor's determination of the need for the suppressed evidence is clearly inconsistent with the record or is without foundation in reason or logic. Dilger, supra, 322 N.W.2d at 463. And in this case we are unable to say that the prosecutor's determination of the need for the blood and urine test results is insupportable.

When the prosecutor's determination of the need for suppressed evidence is challenged and is not capable of easy resolution, we will not second-guess the prosecutor by dismissing the State's appeal. See Dilger, supra, 322 N.W.2d at 463; State v. Discoe, 334 N.W.2d 466 (N.D.1983).

We hold, therefore, that the State has established an adequate basis under Section 29-28-07(5) for its appeal from the trial court's suppression order.

III

Section 39-20-01, N.D.C.C., provides:

"Any person who operates a motor vehicle upon the public highways of this state shall be deemed to have given consent subject to the provisions of this chapter to a chemical test, or tests, of his blood, breath, saliva, or urine for the purpose of determining the alcoholic content of his blood. The test or tests shall be administered at the direction of a law enforcement officer only after placing such person except persons mentioned in section 39-20-03 under arrest and informing him that he is or will be charged with the offense of driving or being in actual physical control of a vehicle upon the public highways while under the influence of intoxicating liquor. The arresting officer shall determine which of the aforesaid tests shall be used."

Anderson moved the trial court for an order suppressing the results of the toxological evaluation of the blood and urine samples on the ground that the requirement of Section 39-20-01 that a person be placed under arrest before any tests are administered was not complied with.

The State responded to Anderson's motion by arguing that (1) under the particular facts of the case an arrest had occurred before the tests were administered, (2) even if Anderson was not arrested, she voluntarily consented to the taking of the samples, and (3) even if Anderson did not consent, the United States Supreme Court's decision in Schmerber v. California, 384 U.S. 757, 86 S.Ct. 1826, 16 L.Ed.2d 908 (1966), authorizes the taking of the samples.

In its order suppressing the results of the chemical testing of the blood and urine samples, the trial court, so far as we can ascertain, impliedly determined that Anderson had not been placed under arrest before the fluid samples were taken, and specifically determined that Anderson did not voluntarily consent to the taking of the fluid samples.

In its brief on appeal, the State contends the trial court erred in granting the motion to suppress and presents as arguments in support of its contention basically the same three arguments it made in response to Anderson's motion to suppress.

In considering the issue of whether or not Anderson was placed under arrest in compliance with Section 39-20-01 before the fluid samples were taken, we note that the existence of an arrest is a question of law. City of Wahpeton v. Johnson, 303 N.W.2d 565 (N.D.1982).

Our examination of the record shows that although Sergeant Johnson told Anderson she would be charged with driving while under the influence, neither he nor Officer Lawyer told Anderson she was under arrest. And although it is true that formal words of arrest are not a condition precedent to the existence of an arrest [e.g., City of Wahpeton, supra, 303 N.W.2d at 567; United States v. Vargas, 643 F.2d 296 (5th Cir.1981) ], it also is true that circumstances must exist from which a reasonable person would conclude he was under arrest and not free to leave [e.g., United States v. Patterson, 648 F.2d 625 (9th Cir.19...