State v. Boehm

Citation849 N.W.2d 239,2014 ND 154
Decision Date17 July 2014
Docket NumberNo. 20140045.,20140045.
CourtUnited States State Supreme Court of North Dakota
PartiesSTATE of North Dakota, Plaintiff and Appellant v. Kyle William BOEHM, Defendant and Appellee.

OPINION TEXT STARTS HERE

Justin M. Balzer, Morton County Assistant State's Attorney, Mandan, ND, for plaintiff and appellant.

Thomas M. Tuntland, Mandan, ND, for defendant and appellee.

McEVERS, Justice.

[¶ 1] The State appeals from the district court's order granting Kyle Boehm's motion to suppress blood test results. We reverse and remand for further proceedings.

I

[¶ 2] On September 1, 2013, at approximately 12:39 a.m., a Morton county deputy was traveling east when he observed a vehicle traveling west on the same road accelerate past him at a high rate of speed. The deputy's radar detected the vehicle was traveling at 44 m.p.h. in a 25 m.p.h. zone. The deputy initiated a traffic stop. The deputy observed the driver, identified as Boehm, had red, bloodshot, watery eyes. The deputy detected an odor of alcohol coming from the vehicle. Boehm admitted consuming four beers. The deputy conducted field sobriety tests on Boehm. Boehm passed the alphabet test and counting backwards test but failed the horizontal gaze nystagmus (“HGN”) test. The deputy advised Boehm of the North Dakota implied consent law, asked if Boehm would submit to a preliminary breath test, and Boehm agreed to submit. The result of Boehm's preliminary breath test was .114 percent. At approximately 12:48 a.m., the deputy arrested Boehm for driving under the influence (“DUI”). The deputy again advised Boehm of the North Dakota implied consent law, asked if Boehm would submit to a blood test at the Morton county jail, and Boehm agreed to submit. At approximately 1:05 a.m., Boehm's blood was drawn at the Morton county jail by a registered nurse.

[¶ 3] On October 16, 2013, Boehm moved to suppress the results of the blood test and submitted a brief in support. Boehm argued the blood test “was a search conducted without a search warrant and without voluntary and freely given consent,” and the blood test “was drawn in an unreasonable manner” in violation of state and federal constitutional protections. Boehm also argued North Dakota's implied consent law violated Missouri v. McNeely, –––U.S. ––––, 133 S.Ct. 1552, 185 L.Ed.2d 696 (2013), and state and federal constitutional protections. On October 28, 2013, the State filed a brief opposing Boehm's motion to suppress. On November 11, 2013, Boehm filed a reply brief. The parties agreed the facts from the deputy's incident report were accurate and no evidentiary hearing was held. On December 30, 2013, the district court granted Boehm's motion to suppress on grounds not argued by the parties, concluding the deputy did not have probable cause to request Boehm submit to an implied consent preliminary breath test. The district court found the deputy smelled an odor of alcohol coming from the vehicle; observed Boehm's red, bloodshot, watery eyes; Boehm admitted consuming four beers; and Boehm's failed HGN test, but concluded the evidence did not provide the deputy with probable cause. The district court noted the deputy did not observe erratic driving, and Boehm passed the counting backwards test and the recitation of the alphabet test. The district court explained:

From the Court[']s perspective it appears the officer relied basically on the HGN test to determine [Boehm] was impaired. This Court is not comfortable using the HGN test as a sole vehicle for determining probable cause and quite frankly would not allow the HGN into evidence at trial were there not other supporting tests available at trial.

The district court did not address the voluntariness of Boehm's consent to the blood test or the reasonableness of the blood test. The State appeals.

[¶ 4] On appeal, the State argues: (1) its appeal should be considered because the State has demonstrated the evidence suppressed is substantial proof of a fact material to the case; (2) the district court erred in finding the deputy did not have probable cause to arrest Boehm for DUI; and (3) the blood test did not violate Boehm's rights and the blood test was completed in a proper environment.

[¶ 5] On appeal, Boehm argues the suppression is required because the blood draw was unreasonable under state and federal constitutional protections. Boehm claims there was no voluntary consent, implied consent is not a valid exception to the warrant requirement, and the blood test being conducted in a non-medical environment is unreasonable.

II

[¶ 6] Section 29–28–07, N.D.C.C., strictly limits the prosecution's right to appeal in a criminal case. State v. Emil, 2010 ND 117, ¶ 5, 784 N.W.2d 137. The State may appeal from an order suppressing evidence if the appeal is “accompanied by a statement of the prosecuting attorney asserting that the appeal is not taken for purpose of delay and that the evidence is substantial proof of a fact material in the proceeding.” N.D.C.C. § 29–28–07(5). The prosecution must support its appeal “with an explanation of the relevance of the suppressed evidence,” and the prosecuting attorney's “statement should not merely paraphrase the requirements of N.D.C.C. § 29–28–07(5).” Emil, at ¶ 6. If the prosecution fails to provide an explanation and merely paraphrases the language of N.D.C.C. § 29–28–07(5), this Court may still consider the State's appeal where a review of the facts clearly demonstrates the relevance of the evidence suppressed.” Emil, at ¶ 6.

[¶ 7] On January 9, 2014, the State filed its notice of appeal with a statement of the prosecuting attorney, under N.D.C.C. § 29–28–07(5). The prosecuting attorney asserted in the statement that to prove Boehm was driving under the influence, in violation of N.D.C.C. § 39–08–01, the blood test result is “critical evidence,” and it is impossible to proceed without that evidence. The prosecuting attorney's statements are more than simply paraphrasing the requirements of N.D.C.C. § 29–28–07(5) and provided adequate explanation of the relevance of the suppressed evidence. In addition, the record clearly demonstrates the relevance of the suppressed evidence.

III

[¶ 8] The applicable standard of review of a district court's decision to grant or deny a motion to suppress evidence is well established.

A trial court's findings of fact in preliminary proceedings of a criminal case will not be reversed if, after the conflicts in the testimony are resolved in favor of affirmance, there is sufficient competent evidence fairly capable of supporting the trial court's findings, and the decision is not contrary to the manifest weight of the evidence. We do not conduct a de novo review. We evaluate the evidence presented to see, based on the standard of review, if it supports the findings of fact.

State v. Whitman, 2013 ND 183, ¶ 20, 838 N.W.2d 401. “Questions of law are fully reviewable on appeal, and whether a finding of fact meets a legal standard is a question of law.” State v. Graf, 2006 ND 196, ¶ 7, 721 N.W.2d 381. “The existence of probable cause to arrest is a question of law.” Moran v. N.D. Dept. of Transp., 543 N.W.2d 767, 769 (N.D.1996). “The existence of consent is a question of fact to be determined from the totality of the circumstances.” State v. Mitzel, 2004 ND 157, ¶ 13, 685 N.W.2d 120. To determine whether a blood sample was extracted in a reasonable manner is a question of fact. Schmerber v. California, 384 U.S. 757, 771–72, 86 S.Ct. 1826, 16 L.Ed.2d 908 (1966).

[¶ 9] This Court merely reviews findings of fact; it does not make its own findings of fact. Whitman, 2013 ND 183, ¶ 20, 838 N.W.2d 401; see also Nichols & Shepard Co. v. Stangler, 7 N.D. 102, 102, 72 N.W. 1089, 1089 (1897) (explaining this Court cannot examine and review issues of fact from district courts when no findings of fact were made). District courts are in a superior position to assess credibility of witnesses and weigh evidence. State v. DeCoteau, 1999 ND 77, ¶ 6, 592 N.W.2d 579. “A district court's findings of fact on a motion to suppress will not be reversed if there is sufficient competent evidence fairly capable of supporting the court's findings, and the decision is not contrary to the manifest weight of the evidence.” Id. Even though this Court defers to the district court's findings of fact, questions of law are fully reviewable. Id.

IV

[¶ 10] The district court's analysis is flawed from the outset, as the district court appears to be applying a probable cause standard to a preliminary breath test. It is not necessary for a law enforcement officer to have probable cause sufficient for arrest to request a preliminary breath test. Under North Dakota's implied consent law, N.D.C.C. § 39–20–14(1), a law enforcement officer may request an onsite screening test of the individual's breath for the purpose of estimating the alcohol concentration if there is reason to believe: (1) a traffic violation has occurred, and (2) in conjunction with the violation, the officer, based on observation, formulates an opinion the driver's body contains alcohol. The traffic stop for speeding and Boehm's admission to consuming alcohol clearly meets the requirements of N.D.C.C. § 39–20–14(1). The district court also concluded the officer lacked probable cause Boehm was driving under the influence, presumably to mean there was no adequate probable cause for arrest.

[¶ 11] When determining whether an officer had probable cause to arrest, this Court reviews the facts and circumstances known by the officer and applies a totality-of-the-circumstances standard. State v. Berger, 2004 ND 151, ¶ 11, 683 N.W.2d 897. “Probable cause to arrest ... exists when the facts and circumstances within a police officer's knowledge and of which he had reasonable trustworthy information are sufficient to warrant a person of reasonable caution to believe that an offense has been or is being committed.” Moran, 543 N.W.2d at 770. Probable cause to arrest does not require an officer to “possess knowledge...

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  • People v. Harris, E060962
    • United States
    • California Court of Appeals
    • February 19, 2015
    ...... arresting officer read an admonition to the defendant under the Missouri implied consent law, and “explained to [the defendant] that under state law refusal to submit voluntarily to the test would lead to the immediate revocation of his driver's license .. and [his refusal] could be used ...(See, e.g., State v. Boehm (N.D.2014) 849 N.W.2d 239, 247 [“A blood test is not per se unreasonable because it was done at a jail, rather than a hospital, when conducted by ......
  • People v. Harris, E060962
    • United States
    • California Court of Appeals
    • February 19, 2015
    ...that Schmerber does not mandate that blood testing be conducted in a hospital or medical facility. (See, e.g., State v. Boehm (N.D.2014) 849 N.W.2d 239, 247 [“A blood test is not per se unreasonable because it was done at a jail, rather than a hospital, when conducted by a medically qualifi......
  • People v. Harris
    • United States
    • California Court of Appeals
    • February 19, 2015
    ...that Schmerber does not mandate that blood testing be conducted in a hospital or medical facility. (See, e.g., State v. Boehm (N.D.2014) 849 N.W.2d 239, 247 [“A blood test is not per se unreasonable because it was done at a jail, rather than a hospital, when conducted by a medically qualifi......
  • State v. Birchfield, 20140109.
    • United States
    • United States State Supreme Court of North Dakota
    • January 15, 2015
    ...and presents the arrestee with a choice. See McCoy, 2014 ND 119, ¶ 21, 848 N.W.2d 659 ; Smith, 2014 ND 152, ¶ 16, 849 N.W.2d 599 ; State v. Boehm, 2014 ND 154, ¶ 20, 849 N.W.2d 239 ; Fetch, 2014 ND 195, ¶ 9, 855 N.W.2d 389. The United States Supreme Court has not decided, and it is a questi......
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