State v. Berger

• Decision Date: 05 March 2001
• Docket Number: No. 20000174.,20000174.
• Citation: 623 N.W.2d 25,2001 ND 44
• Parties: STATE of North Dakota, Plaintiff and Appellee, v. Kenneth M. BERGER, Defendant and Appellant.
• Court: North Dakota Supreme Court

623 N.W.2d 25

2001 ND 44

STATE of North Dakota, Plaintiff and Appellee, v. Kenneth M. BERGER, Defendant and Appellant.

No. 20000174.

Supreme Court of North Dakota.

March 5, 2001.

Ladd R. Erickson, Assistant State's Attorney, Mandan, ND, for plaintiff and appellee.

Rauleigh D. Robinson, Bismarck, ND, for defendant and appellant.

KAPSNER, Justice.

[¶ 1] Kenneth M. Berger appeals from a criminal judgment and order, based on his guilty plea which reserved his right to appeal the trial court's denial of his motion to dismiss the charge and his motion to suppress Intoxilyzer results due to an alleged violation of his statutory right to consult with counsel. We affirm.

I

[¶ 2] On November 11, 1999, at about 1:00 a.m., a sheriff's deputy observed a vehicle operated by Berger driving with the passenger-side tires approximately two feet over the right fog line. The deputy obtained a radar reading of 39 mph in a 55-mph speed zone. After turning and following the vehicle, the deputy observed Berger weaving three times from the driving lane to two-to-three feet over the fog line. The deputy reported when he stopped the vehicle Berger smelled of alcohol, had glassy and bloodshot eyes, slurred his speech, fumbled for his driver's license, was unbalanced and unsteady on his feet, refused field sobriety tests because he stated he "wouldn't pass them anyway," and then became verbally abusive when the deputy arrested him for driving while under the influence of intoxicating liquor.

[¶ 3] While seated in the back of the patrol car, the deputy read Berger the implied consent advisory, after which Berger asked: "Do I have a right to call a lawyer?" The deputy replied, "You certainly do.... I will give you a phone book. You can call." Berger named two local attorneys and indicated he would call one, and "[i]f he is not there I will get [the other attorney], but I don't want to do that." The deputy also told Berger, "I will give you a reasonable amount of time. It's about twenty minutes to contact a lawyer.... I will give you every opportunity to call a lawyer.... You know, I mean that's fair. I will give you a chance to call whoever you would like." The officer audiotaped this conversation.

[¶ 4] After the deputy brought Berger to the Law Enforcement Center, the deputy took Berger to a booking room, where he would have some privacy, and gave him a telephone book and access to a telephone. The deputy left the room for about 10 minutes; when he returned, the deputy testified Berger said he had tried to call a lawyer but was not able to reach one. The deputy testified Berger never mentioned anything about not being able to call long distance. On the other hand, Berger testified he tried to call one local attorney but got an answering machine, then tried another local attorney but "couldn't get out," and finally tried to call an attorney in Dickinson but kept getting the operator. Berger testified he told the officer he could not get through on the long-distance call, but the officer allegedly disregarded Berger's statement and only responded by asking Berger if he would take the Intoxilyzer test. An officer testified the phone records at the police station show each phone number when it is dialed. The record indicated Berger only attempted to make one phone call, and it was to a local attorney's number.

[¶ 5] The deputy administered the Intoxilyzer test to Berger and obtained a.19% result. Berger was charged with driving while under the influence of intoxicating liquor and/or drugs or with blood alcohol content .10% or greater. Subsequently, Berger moved the court to dismiss the charge because he was "denied his constitutional right to counsel at a critical time in this case" when he allegedly could not make a long-distance call to his attorney. The trial court denied the motion, stating: "The prosecution has submitted an affidavit refuting the statement of [Berger]." Berger requested a hearing on his motion to dismiss, which he stated "may be viewed as an alternative motion to suppress." At the hearing, Berger conceded there was probable cause for the officer to stop Berger's vehicle, but stated the focus of the inquiry was whether Berger was given a reasonable opportunity to consult with counsel before submitting to a chemical test. At the conclusion of the hearing, the trial court indicated it was "satisfied that Mr. Berger was given the opportunity to contact an attorney." The trial court denied Berger's motion to dismiss the charge, as well as the motion to suppress evidence. Berger entered a guilty plea, reserving his right to appeal, and on June 13, 2000, he filed a Notice of Appeal to this Court.

II

[¶ 6] Berger argues he intentionally filed a motion to dismiss the charge because it is "stronger" than a motion to suppress the Intoxilyzer results. Berger contends suppression of the evidence is remedial in nature and designed to change police misconduct, yet in this case it is "not enough." Berger asserts that the Mandan Police Department and Morton County Sheriff's Department have shared the combined Law Enforcement Center in Mandan for years and have known of the law regarding the right to counsel but have made a decision to disregard that law. For support Berger relies primarily on City of Mandan v. Jewett, 517 N.W.2d 640, 640 (N.D.1994) (noting the Mandan Police Department's lack of capacity for placing long-distance phone calls in the evening).

[¶ 7] At the hearing, the trial court queried Berger's attorney about the motion to dismiss the charge. The trial judge stated, "I suspect [the motion to dismiss is] in the nature of a motion to suppress, or am I wrong?" Counsel responded that the court's discretion was not abused by "grant[ing] a motion to dismiss on these facts, however, it may more often be characterized as a motion to suppress." The trial court pressed further: "So what you are trying to do is suppress the chemical tests on the basis that [Berger] was not given an opportunity to consult with his attorney?" When Berger's counsel agreed, the trial court clarified: "It's not a motion to dismiss. You are trying to get rid of a chemical test." Ultimately, the trial court denied both the motion to dismiss and the motion to suppress.

[¶ 8] Berger insists the motion to dismiss was an appropriate remedy for the failure of law enforcement officers to provide Berger an opportunity to consult with counsel, according to the holdings of Bickler v. N.D. State Highway Comm'r, 423 N.W.2d 146 (N.D.1988) and Jewett, 517 N.W.2d 640. We find Berger's interpretation of our case law misinformed.

[¶ 9] In Bickler, we reversed a district court's decision that Bickler was not given a reasonable opportunity to consult with his attorney because he was refused a conference in a private setting out of the officer's view. 423 N.W.2d at 147-48. Bickler never filed a motion to dismiss the charge; rather, Bickler appealed his administrative revocation of his driver's license for one year for refusing to take the Intoxilyzer test. Id. at 147. Bickler provides no support for Berger's argument.

[¶ 10] Berger's reliance on Jewett, 517 N.W.2d 640, is similarly misguided. In Jewett, the trial court had granted Jewett's motion to dismiss the charge of driving under the influence of intoxicating liquor, reasoning Jewett was denied his constitutional and statutory rights to assistance of counsel and his constitutional rights to due process of law because he was not afforded a private consultation with his attorney. Id. at 640-41. We reviewed the trial court's decision under the standard of review for a motion to suppress evidence, not a motion to dismiss. Id. at 641. Furthermore, we reversed the trial court and held that the police gave Jewett a reasonable opportunity to consult with counsel in a meaningful way when he was allowed to call from an outdoor pay phone near the place of his arrest, despite the Mandan Police Department lacking the capacity for placing long-distance phone calls in the evening. Id. at 640, 643. The officers testified they could not hear Jewett's conversation with his attorney, as they passively observed him from nine to twelve feet away; and we indicated anything they might have overheard appropriately would have been suppressed. Id. at 643. [¶ 11] We have outlined our standard of review for preliminary proceedings, such as a motion to dismiss, in criminal cases at the trial court level. We will not reverse a trial court's findings of fact in preliminary criminal proceedings if, after the conflicts in the testimony are resolved in favor of affirmance, there is sufficient competent evidence fairly capable of supporting the findings and if the trial court's decision is not contrary to the manifest weight of the evidence. State v. Tester, 1999 ND 60, ¶ 11, 592 N.W.2d 515. This standard is identical to our review of a trial court's denial of a motion to suppress. See State v. Norrid, 2000 ND 112, ¶ 5, 611 N.W.2d 866. This deferential standard of review recognizes the importance of the opportunity of the trial court to observe and assess credibility of witnesses. Id.

[¶ 12] To warrant a dismissal of charges, accused persons must show actual prejudice of their right to present a defense and have a fair trial. City of Fargo v. Stutlien, 505 N.W.2d 738, 746 (N.D. 1993). However, we have declined to adopt a per se prejudice rule requiring dismissal when a defendant is denied use of a telephone. City of Fargo v. Thompson, 520 N.W.2d 578, 582 (N.D.1994). In Thompson, we affirmed the dismissal of charges when the defendant's right to present a defense and have a fair trial was actually prejudiced because not only was he denied an opportunity to use the telephone to contact an attorney for five hours after his arrest, but also was detained by the police for eleven hours and lacked outward signs of alcohol impairment. Id. at 581-82.

[¶ 13] In this case, Berger was not detained for hours before being allowed to contact...