State v. DuPaul, Cr. N

• Decision Date: 09 December 1993
• Docket Number: Cr. N
• Parties: STATE of North Dakota, Plaintiff and Appellant, v. Michael O. DuPAUL, Defendant and Appellee. CITY OF MINOT, Plaintiff and Appellant, v. Michael O. DuPAUL, Defendant and Appellee. os. 930063, 930064.
• Court: North Dakota Supreme Court

Page 266

509 N.W.2d 266

STATE of North Dakota, Plaintiff and Appellant, v. Michael O. DuPAUL, Defendant and Appellee.

CITY OF MINOT, Plaintiff and Appellant, v. Michael O. DuPAUL, Defendant and Appellee.

Cr. Nos. 930063, 930064.

Supreme Court of North Dakota.

Dec. 9, 1993.

John P. Van Grinsven III (argued), Asst. State's Atty., Minot, for plaintiffs and appellants.

Michael O. DuPaul, pro se.

LEVINE, Justice.

The State and the City of Minot appeal from a county court order dismissing criminal charges against Michael DuPaul. We reverse and remand for trial.

Shortly after 11:00 P.M. on May 18, 1991, Officer Bonness of the Minot Police Department received a radio dispatch that a light colored Monte Carlo, license number BMH807, had struck a viaduct on Broadway. Officer Bonness soon spotted a Monte Carlo closely matching the description, with license number BMH507, weaving in and out of heavy traffic on Broadway without signaling. Officer Bonness stopped the vehicle to investigate, and Officer Debowey arrived as a back-up.

The driver of the vehicle, DuPaul, was argumentative and uncooperative, his eyes were "watery and glassy looking," he had difficulty standing, and he smelled of alcohol. He refused to perform field sobriety tests. When Bonness requested that DuPaul have a seat in his patrol car, DuPaul asked if he were under arrest. When Bonness said no, DuPaul began backing away from the officers. Officer Debowey repeated the request that DuPaul be seated in the patrol car, and DuPaul turned and ran toward a nearby bar. The officers chased DuPaul, and, after a brief struggle, handcuffed him and placed him under arrest for preventing discharge of official duties.

DuPaul was transported to the Minot police station. Bonness asked him several times if he would consent to a blood test, and DuPaul responded that he wanted a doctor and a lawyer. DuPaul was provided with a telephone and a telephone book, but he did not call an attorney. Bonness eventually arrested DuPaul for driving under the influence, and DuPaul thereafter refused additional requests for blood tests. ¹

DuPaul moved to dismiss the charges, and a hearing was held. The county court ² determined that DuPaul could not be found guilty of preventing arrest or discharge of official duties because he was never informed that he was under arrest. The court also determined that the alleged illegal arrest precluded the DUI charge. An order dismissing both charges was entered on January 12, 1993.

Our first concern when the State appeals in a criminal case is whether we have jurisdiction. Section 29-28-07, N.D.C.C., authorizes an appeal by the State from an order quashing an information or indictment. We have consistently held that this includes the right to appeal from an order of dismissal that has the same effect as an order quashing an information. E.g., State v. Ritter, 472 N.W.2d 444, 447 (N.D.1991); State v. Thill, 468 N.W.2d 643, 645 (N.D.1991); State v. Hogie, 424 N.W.2d 630, 631 (N.D.1988). We conclude that we have jurisdiction over this appeal.

The State asserts that the county court erred in dismissing the charge of preventing discharge of official duties. The relevant statute is Section 12.1-08-02(1), N.D.C.C., which says in part:

"1. A person is guilty of a class A misdemeanor if, with intent to prevent a public servant from effecting an arrest of himself or another for a misdemeanor or infraction, or from discharging any other official duty, he creates a substantial risk of bodily injury to the public servant or to anyone except himself, or employs means justifying or requiring substantial force to overcome resistance to effecting the arrest or the discharge of the duty."

The statute creates two kinds of unlawful intent: (1) the intent to prevent arrest and (2) the intent to prevent the discharge of an official duty. The complaint in this case charged DuPaul with the intent to prevent the officer from discharging his official duties. The county court failed to recognize the statute's distinction between the two kinds of unlawful intent and dismissed solely on the basis that DuPaul was not under arrest when he fled:

"In this case the defendant asked am I under arrest and he was told no. The defendant turned and left and the officers then used force to [e]ffect an arrest. There is no record that they gave him notice of intention to arrest. The record is quite the opposite. When Officer Bonness answered Mr. DuPaul's question of whether or not he was under arrest by answering no, there was nothing to hold the defendant at that point. The defendant cannot prevent arrest or discharge of other duties when he has been told he was not under arrest. The defendant's Motion to Dismiss is granted."

Arrest of the person, or notice of intention to arrest, is not a prerequisite to commit the offense of preventing discharge of official duties. The elements of that offense, as charged in this case, are (1) "intent to prevent a public servant from ... discharging any ... official duty" (2) by "means justifying or requiring substantial force to overcome resistance to ... the discharge of the duty." Section 12.1-08-02(1), N.D.C.C. The Comment to Section 1302 of the proposed Federal Criminal Code, from which Section 12.1-08-02 was derived, clarifies that "[e]xecution of official duties other than arrest is also covered." Final Report, Proposed Federal Criminal Code, p. 105 (1971). The county court's conclusion that DuPaul was not under arrest was not dispositive.

The court's reliance upon lack of an arrest appears to have been induced by a misunderstanding of the law regarding investigatory vehicle stops. The court noted that, because DuPaul had been told he was not under arrest, "there was nothing to hold the defendant at that point." It is well settled, however, that DuPaul was not free to leave at that point, and the officers were authorized to detain him.

DuPaul was initially stopped pursuant to a valid investigatory vehicle stop. ³ Once a vehicle has been validly stopped, the officer is authorized to order the driver out of the vehicle. Pennsylvania v. Mimms, 434 U.S. 106, 111, 98 S.Ct. 330, 333, 54 L.Ed.2d 331 (1977); State v. Gilberts, 497 N.W.2d 93, 96 (N.D.1993). The officer can also order the driver to sit in the patrol car while the officer issues a citation or further investigates the reasonable suspicion of a violation. State v. Mertz, 362 N.W.2d 410, 413 (N.D.1985).

As part of such an investigatory Terry stop, the officer is authorized to detain the person for as long as is reasonably necessary to effectuate the purpose of the stop. Florida v. Royer, 460 U.S. 491, 500, 103 S.Ct. 1319, 1325, 75 L.Ed.2d 229 (1983). ⁴ In the context of a vehicle stop, we said in State v. Mertz, supra, 362 N.W.2d at 412:

"A police officer may temporarily detain a traffic offender at the scene of a violation. See Sections 39-07-07 and 39-07-09, N.D.C.C. A reasonable period of detention includes the amount of time necessary for the officer to complete his duties resulting from the traffic stop.... After a lawful stop and during such temporary detention a traffic violator is subject to the arresting officer's authority and restraint until the officer completes issuance of the traffic citation and expressly releases the violator." (Citation omitted).

In this case, Officer Bonness stopped DuPaul's vehicle because he observed it weaving through traffic without signaling lane changes and because he had received a report that a vehicle matching that description had struck a viaduct. In the course of investigating those incidents, the officers were presented with facts giving rise to a reasonable suspicion that DuPaul was driving while under the influence of alcohol. They were justified in briefly detaining DuPaul to further investigate that suspicion. By fleeing while he was still being lawfully detained by the officers, DuPaul prevented them from carrying out their official duties to investigate a possible DUI and remove an alcohol-impaired driver from the roadway. The officers had to pursue DuPaul and physically restrain him to complete those duties. Depending upon the proof at trial, ⁵ DuPaul's conduct may have constituted a violation of the statute.

DuPaul also asserted that the officers acted in excess of their lawful authority, which would raise a statutory defense to the charge of preventing discharge of official duties. Section 12.1-08-02(2), N.D.C.C., provides:

"2. It is a defense to a prosecution under this section that the public servant was not acting lawfully, but it is no defense that the defendant mistakenly believed that the public servant was not acting lawfully. A public servant executing a warrant or other process in good faith and under color of law shall be deemed to be acting lawfully."

This court has held, however, that the statute creates a factual defense which is inappropriate for pre-trial determination and dismissal:

"More immediately, the criminal statutes still recognize justification defenses as factual remedies for official misconduct. Resistance to 'excessive force' by an officer acting under color of law is a factual defense to any criminal charge arising from the resistance. NDCC 12.1-05-03(1). Specifically, where the charge is preventing arrest, as in this case, the defining statute authorizes 'a defense to a prosecution under this section that the public servant was not acting lawfully....' NDCC 12.1-08-02(2). Factual defenses remain as remedies for unlawful official conduct.

"These defenses do not depend on judicial suppression of evidence or dismissal of charges. Rather, they depend upon full presentation of the facts to the trier of fact, usually the jury, for determination of the independent nature of the charged offense. Official misconduct is a...