State v. Baxter

Decision Date28 April 2015
Docket NumberNo. 20140325.,20140325.
Citation863 N.W.2d 208
PartiesSTATE of North Dakota, Plaintiff and Appellee v. Kyle Lynn BAXTER, Defendant and Appellant.
CourtNorth Dakota Supreme Court

Thomas A. Gehrz, Dickinson, N.D., for plaintiff and appellee.

Thomas F. Murtha IV, Dickinson, N.D., for defendant and appellant.

Opinion

McEVERS, Justice.

[¶ 1] Kyle Lynn Baxter appeals from a criminal judgment entered on a conditional plea of guilty to refusal to submit to an onsite screening or chemical test. Because we conclude the criminal refusal statutes do not violate Baxter's rights under the Fourth Amendment and N.D. Const. art. I, § 8, the unconstitutional conditions doctrine, or the due process clause, we affirm.

I

[¶ 2] On November 21, 2013, a Stark County deputy sheriff pulled over Baxter's vehicle in Dickinson after observing the vehicle with frost on the windshield weaving, being driven in the opposite lane of traffic, and almost hitting the curb. The deputy noticed a very strong odor of alcohol on Baxter and that he was lethargic and slow to respond to questions. After Baxter failed a field sobriety test, the HGN test in which he [s]cored six out of the possible six clues,” the officer read him the implied consent advisory and asked him to take an onsite screening test with an Intoximeter. Baxter refused. The deputy placed Baxter under arrest, took him to the law enforcement center, again read him the advisory, and asked him to take a chemical test. Baxter again refused.

[¶ 3] Baxter was charged with refusing to submit to an onsite screening or chemical test in violation of N.D.C.C. § 39–08–01(1)(e). Baxter moved to suppress evidence, arguing the criminal refusal statutes violate his rights under the State and Federal Constitutions. The district court rejected Baxter's arguments and denied the motion. Baxter conditionally pled guilty under N.D.R.Crim.P. 11(a)(2), reserving the right to appeal the court's order denying his motion to suppress.

II

[¶ 4] Baxter argues the criminal refusal statutes violate his rights under the Fourth Amendment and its state counterpart, the unconstitutional conditions doctrine, and the due process clause.

[¶ 5] In Beylund v. Levi, 2015 ND 18, ¶ 17, 859 N.W.2d 403, we explained:

The determination whether a statute is unconstitutional is a question of law, which is fully reviewable on appeal. All regularly enacted statutes carry a strong presumption of constitutionality, which is conclusive unless the party challenging the statute clearly demonstrates that it contravenes the state or federal constitution. Any doubt about a statute's constitutionality must, when possible, be resolved in favor of its validity. The power to declare a legislative act unconstitutional is one of the highest functions of the courts, and that power must be exercised with great restraint. The presumption of constitutionality is so strong that a statute will not be declared unconstitutional unless its invalidity is, in the court's judgment, beyond a reasonable doubt. The party challenging the constitutionality of a statute has the burden of proving its constitutional infirmity.

(quoting State v. Birchfield, 2015 ND 6, ¶ 5, 858 N.W.2d 302).

A

[¶ 6] In Birchfield, 2015 ND 6, ¶ 19, 858 N.W.2d 302, we held the criminal refusal statutes are not unconstitutional under the Fourth Amendment or N.D. Const. art. I, § 8. In Beylund, 2015 ND 18, ¶¶ 30–31, 859 N.W.2d 403, we held the implied consent law does not violate the doctrine of unconstitutional conditions. Those cases dealt with the criminal refusal provision relating to chemical tests, N.D.C.C. § 39–08–01(e)(2), which may be administered “only after placing the individual ... under arrest.” N.D.C.C. § 39–20–01(2). See Birchfield, at ¶ 7; Beylund, at ¶ 17. Baxter refused both the onsite screening test and the chemical test, and the criminal judgment indicates he conditionally pled guilty to “Refusal to Submit to an On Sight Screening or Chemical Test in violation of N.D.C.C. § 39–08–01(e)(3).”

[¶ 7] The refusal to submit to an onsite screening test is criminalized under N.D.C.C. § 39–08–01 :

1. A person may not drive or be in actual physical control of any vehicle upon a highway or upon public or private areas to which the public has a right of access for vehicular use in this state if any of the following apply:
....
e. That individual refuses to submit to any of the following:
....
(3) An onsite screening test, or tests, of the individual's breath for the purpose of estimating the alcohol concentration in the individual's breath upon the request of a law enforcement officer under section 39–20–14.
....
2. An individual who operates a motor vehicle on a highway or on public or private areas to which the public has a right of access for vehicular use in this state who refuses to submit to a chemical test, or tests, required under section 39–06.2–10.2, 39–20–01, or 39–20–14, is guilty of an offense under this section.

[¶ 8] Section 39–20–14(1), N.D.C.C., provides when a law enforcement officer may request an onsite screening test:

Any individual who operates a motor vehicle upon the public highways of this state is deemed to have given consent to submit to an onsite screening test or tests of the individual's breath for the purpose of estimating the alcohol concentration in the individual's breath upon the request of a law enforcement officer who has reason to believe that the individual committed a moving traffic violation or was involved in a traffic accident as a driver, and in conjunction with the violation or the accident the officer has, through the officer's observations, formulated an opinion that the individual's body contains alcohol.

(Emphasis added). Section 39–20–04(1), N.D.C.C., provides that [i]f a person refuses to submit to testing under section ... 39–20–14, none may be given....” The results of a “screening test must be used only for determining whether or not a further test shall be given under the provisions of section 39–20–01.” N.D.C.C. § 39–20–14(3).

[¶ 9] When law enforcement has reason to believe a moving violation has occurred, along with information to form an opinion that the driver's body contains alcohol, the officer has a reasonable and articulable suspicion the person was driving under the influence of alcohol sufficient to request an onsite screening test as provided in N.D.C.C. § 39–20–04(1). This accords with the view held by the vast majority of courts that field sobriety testing may be requested on the basis of reasonable, articulable suspicion of driver intoxication. See, e.g., State v. Royer, 276 Neb. 173, 753 N.W.2d 333, 341 (2008), and cases collected therein; State v. Bernokeits, 423 N.J.Super. 365, 32 A.3d 1152, 1157–58 (App.Div.2011), and cases collected therein; State v. Candace S., 274 P.3d 774, 778 (N.M.Ct.App.2011). However, this Court has declined to decide whether probable cause to arrest for driving under the influence is constitutionally necessary before an onsite screening test may be requested, because probable cause to arrest existed in each of the cases. See Mayo v. Moore, 527 N.W.2d 257, 259 (N.D.1995) ; State v. Goeman, 431 N.W.2d 290, 291 n. 1 (N.D.1988) ; State v. Pitman, 427 N.W.2d 337, 343–44 (N.D.1988). Nevertheless, we have explained the role of the N.D.C.C. § 39–20–14 onsite screening test:

Similar in purpose to the various field sobriety tests, the purpose of an on-site chemical screening test is to insure that sufficient probable cause exists to warrant an arrest. The arresting officer, in light of the information already available to him, bent over backwards to insure that he had sufficient probable cause to place Asbridge under arrest, and we fail to see how Asbridge was prejudiced by the administration of the test. Had he passed the screening test, he would have been spared the onerous burden and inconvenience of having to decide whether or not to submit to further chemical testing.

Fossum v. North Dakota Dep't of Transp., 2014 ND 47, ¶ 16, 843 N.W.2d 282 (quoting Asbridge v. North Dakota State Highway Comm'r, 291 N.W.2d 739, 745 (N.D.1980) ).

[¶ 10] Other courts have considered whether probable cause is constitutionally necessary to support a request for a preliminary breath test (“PBT”). In State v. McGuigan, 184 Vt. 441, 965 A.2d 511, 516–17 (2008), the Vermont Supreme Court relied on the balancing test in Terry v. Ohio, 392 U.S. 1, 21, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968), finding “the level of intrusion occasioned by the administration of the tests was ‘outweighed by the strong law enforcement interest in attempting to keep a suspected drunk driver off the roads,’ and concluded:

PBTs are common tools in the investigatory kit officers use to ascertain whether probable cause exists to believe that an individual has been driving under the influence of alcohol. PBTs are “quick and minimally intrusive” yet “perform[ ] a valuable function as a screening device” to detect drunk driving. State v. Orvis, 143 Vt. 388, 391, 465 A.2d 1361, 1362 (1983). This investigative step is completed quickly. The relatively limited intrusion into a suspect's privacy is outweighed by the important public-safety need to identify and remove drunk drivers from the roads. See State v. Martin, 145 Vt. 562, 568, 496 A.2d 442, 447 (1985) (citing South Dakota v. Neville, 459 U.S. 553, 558, 103 S.Ct. 916, 74 L.Ed.2d 748 (1983) (noting the “serious threat posed to public safety” by drunk drivers on public highways)). We thus find it reasonable, under both the Fourth Amendment and Article 11, for an officer to administer a PBT to a suspect if she can point to specific, articulable facts indicating that an individual has been driving under the influence of alcohol.

(footnote omitted, internal citation omitted). Courts in general have held “submit[ting] to a preliminary test of his or her breath for alcohol concentration is not unconstitutional because it does not require probable cause to administer the preliminary breath test.” 61A C.J.S. ...

To continue reading

Request your trial
13 cases
  • Barrios-Flores v. Levi
    • United States
    • United States State Supreme Court of North Dakota
    • April 16, 2017
    ...may request a driver to submit to a preliminary onsite screening test of the driver’s breath. State v. Baxter, 2015 ND 107, ¶¶ 6-12, 863 N.W.2d 208. On remand from the United States Supreme Court for further consideration in light of Birchfield v. North Dakota, we vacated our earlier decisi......
  • Barrios-Flores v. Levi
    • United States
    • United States State Supreme Court of North Dakota
    • May 16, 2017
    ...may request a driver to submit to a preliminary onsite screening test of the driver's breath. State v. Baxter , 2015 ND 107, ¶¶ 6–12, 863 N.W.2d 208. On remand from the United States Supreme Court for further consideration in light of Birchfield v. North Dakota , we vacated our earlier deci......
  • Gillmore v. Levi
    • United States
    • United States State Supreme Court of North Dakota
    • April 12, 2016
    ...614, 193 L.Ed.2d 495 (2015),] we held the implied consent law does not violate the doctrine of unconstitutional conditions. In State v. Baxter, 2015 ND 107, ¶¶ 13–17, 863 N.W.2d 208, we held the criminal refusal statutes do not violate a defendant's due process rights. Recently, in State v.......
  • State v. Webster
    • United States
    • United States State Supreme Court of North Dakota
    • March 30, 2017
    ...suspicion of driving under the influence before an officer may require a driver to submit to an onsite breath screening test. State v. Baxter , 2015 ND 107, ¶ 10, 863 N.W.2d 208. [¶ 20] Whether a law enforcement officer's conduct violates constitutional prohibitions against unreasonable sea......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT