State v. Dressler, Cr. N

• Decision Date: 12 December 1988
• Docket Number: Cr. N
• Citation: 433 N.W.2d 549
• Parties: STATE of North Dakota, Plaintiff and Appellant, v. Nick E. DRESSLER, Defendant and Appellee. o. 880090CA.
• Court: North Dakota Court of Appeals

Page 549

433 N.W.2d 549

STATE of North Dakota, Plaintiff and Appellant, v. Nick E. DRESSLER, Defendant and Appellee.

Cr. No. 880090CA.

Court of Appeals of North Dakota.

Dec. 12, 1988.

Review Denied Feb. 10, 1989.

Tom M. Henning (argued), Asst. State's Atty., Dickinson, for plaintiff and appellant.

Freed, Dynes, Reichert & Buresh, P.C., Dickinson, for defendant and appellee; argued by Ronald A. Reichert.

PER CURIAM.

The State of North Dakota has appealed from a county court order granting Nick E. Dressler's motion to suppress the results of blood and breath tests to determine the alcoholic content of his blood. We affirm.

At approximately 10:30 p.m. on December 1, 1987, Stark County Deputy Lawrence Kitzman arrested Dressler about seven miles north of Richardton for driving while under the influence of alcohol in violation of Sec. 39-08-01, N.D.C.C. ¹ Dressler requested that a blood test be taken in Richardton. Kitzman said they were not going to Richardton because the hospital in Richardton had refused to draw blood samples in the past. ² Kitzman transported Dressler to Dickinson, where Dressler submitted to a blood test at St. Joseph's Hospital and to a breath test at the Southwest Multi-County Correction Center. Dressler did not again request an additional test.

The county court granted Dressler's motion to suppress evidence of the results of the blood and breath tests administered at Kitzman's direction. The State appealed, contending that Dressler was not entitled to his own blood test until after submitting to a test requested by Kitzman, and that Dressler was not prevented from obtaining his own test.

Section 39-20-01, N.D.C.C., provides that a motorist is deemed to have consented to a chemical test to determine the alcoholic content of his blood; provides for the administration of a test upon an arrested person at the direction of a law enforcement officer; and provides that refusal to submit to a test will result in revocation of driving privileges. Section 39-20-02, N.D.C.C., provides a motorist with a right to an additional test:

"The person tested may have a physician, or a qualified technician, chemist, registered nurse, or other qualified person of his own choosing administer a chemical test or tests in addition to any administered at the direction of a law enforcement officer with all costs of an additional test or tests to be the sole responsibility of the person charged. The failure or inability to obtain an additional test by a person does not preclude the admission of the test or tests taken at the direction of a law enforcement officer."

The State contends that Sec. 39-20-02, N.D.C.C., "clearly means that the person must have been tested before his right to obtain his own test has attached." The State's reliance upon State v. Larson, 313 N.W.2d 750 (N.D.1981), is misplaced because that case did not involve an issue about when a motorist's right to a test by a person of his own choosing attached. The State's contention, however, does find support in Huff v. State, 144 Ga.App. 764, 242 S.E.2d 361, 362-363 (1978) ("The statutory rights to alternate tests ... do not attach until the state has performed its tests."), and Greenwood v. Dep't of Motor Vehicles, 13 Wash.App. 624, 536 P.2d 644, 646 (1975) ("[A] person ... has the right to have tests of his own choosing after he has either submitted to or refused the test or tests directed by the law enforcement officer.").

Section 39-20-02, N.D.C.C., need not be rigidly applied, without regard to varying circumstances. "[R]espect for the statutory right should be given willingly, and not reluctantly." People v. Underwood, 153 Mich.App. 598, 396 N.W.2d 443, 444 (1986). We believe that under Sec. 39-20-02, N.D.C.C., a person arrested for driving under the influence of alcohol must be afforded a reasonable opportunity to secure an additional test by a person of his own choosing if he requests one. In some cases, that reasonable opportunity may arise before a test has been administered at the direction of a law enforcement officer. "[T]he meaning of a 'reasonable opportunity' to obtain an examination may vary depending on the circumstances." Commonwealth v. Alano, 388 Mass. 871, 448 N.E.2d 1122, 1128 (1983).

Law enforcement officers need not assist people in obtaining independent tests (Commonwealth v. Alano, supra,) or even advise them of the right to an additional test [State v. Rambousek, 358 N.W.2d 223 (N.D.1984) ]. Law enforcement officers, however, "must not prevent or hinder an individual's timely, reasonable attempts to obtain an independent examination." Commonwealth v. Alano, supra, 448 N.E.2d at 1128. See also City of Blaine v. Suess, 93 Wash.2d 722, 612 P.2d 789 (1980). Law enforcement officers must afford a reasonable opportunity and a motorist's request for an additional test by a person of his own choosing must be a reasonable one. 4 R. Erwin, Defense of Drunk Driving Cases Sec. 30.06, p. 30-28 (3rd ed. 1988). "What may be reasonable in one locality may be unreasonable in another." Id.

What is reasonable in circumstances involving arrest in a large city with a wealth of testing facilities readily available may not be reasonable in circumstances involving a late-night arrest in a rural area where testing facilities are few and far between. The probative value of a blood test diminishes with the passage of time ³ and "[i]n a short period of time an intoxicated person may 'sober up' sufficiently to negate the materiality of a blood test where the sample has not been timely withdrawn." In re Martin, 58 Cal.2d 509, 24 Cal.Rptr. 833, 374 P.2d 801, 803 (1962). Thus, the time available for securing a test at the direction of a law enforcement officer and for an additional test requested by an arrested motorist will affect the reasonableness of both their actions.

In its order granting Dressler's motion to suppress, the county court stated:

"The testimony reveals that the Defendant clearly and unequivocally requested a blood test at the Richardton Community Hospital. He was informed that Richardton Community Hospital had not in the past obliged requests to draw blood samples by law enforcement officers and the officer therefore declined to transport the Defendant a few hundred yards to the Richardton Community Hospital. Rather, the Defendant was transported the 23 miles to St. Joseph's Hospital in Dickinson. Defendant failed to subsequently renew his request.

"In order for Section 39-20-02 to be meaningful, the officer could easily have taken the Defendant to Richardton Community Hospital for the blood test that had been requested by Defendant with no inconvenience or expense to the county."

Here, there was a late-night arrest in a rural area and Dressler's request that he be...