State v. Fetch
| Decision Date | 28 October 2014 |
| Docket Number | No. 20140129.,20140129. |
| Citation | 855 N.W.2d 389 |
| Parties | STATE of North Dakota, Plaintiff and Appellee v. Jeffrey FETCH, Defendant and Appellant. |
| Court | North Dakota Supreme Court |
Christopher M. Redmann (appeared), Assistant Burleigh County State's Attorney and Tessa Vaagen (argued), under the Rule on Limited Practice of Law by Law Students, Bismarck, N.D., for plaintiff and appellee.
Danny L. Herbel, Bismarck, N.D., for defendant and appellant.
[¶ 1] Jeffrey Fetch appeals from a criminal judgment entered on a conditional plea of guilty to driving under the influence of intoxicating liquor, reserving his right to appeal the district court's denial of his motion to suppress evidence. Fetch argues the results of his blood test must be suppressed because he did not voluntarily consent to the blood draw. Because there is sufficient competent evidence to support the court's decision that Fetch voluntarily consented to the blood test, we affirm the judgment.
[¶ 2] On August 3, 2013, Trooper Derek Arndt of the Highway Patrol stopped Fetch for speeding in Bismarck, noticed Fetch exhibited signs of intoxication, and gave Fetch a preliminary breath test which registered .138 percent. Arndt arrested Fetch for driving under the influence, handcuffed him, and placed him in the back seat of the patrol car. Arndt proceeded to inform Fetch of the implied consent advisory:
[¶ 3] The partial transcript of the traffic stop ends at this point. At the suppression hearing, however, Arndt testified Fetch “ultimately decided that he would take the test,” but Arndt could not recall at what point during the encounter Fetch consented. Fetch testified:
The results of the blood test revealed a blood alcohol concentration of .17 percent.
[¶ 4] The district court rejected Fetch's arguments that law enforcement should have obtained a search warrant before requesting him to submit to the blood test, and the implied consent advisory required by N.D.C.C. § 39–20–01(3) caused his consent to be involuntary and coerced.
[T]here is no indication in this case that the defendant was “obviously coerced” into taking the tests requested by the officer. Although it was understandably difficult for Fetch to decide to take the test because of his fear of needles, no facts elicited indicated the officer engaged in any coercive behavior. Fetch voluntarily and freely consented to taking the test, even though he admitted it was something he may not want to do, or it was a difficult choice.
Fetch entered a conditional plea of guilty under N.D.R.Crim.P. 11(a)(2) to driving under the influence of intoxicating liquor in violation of N.D.C.C. § 39–08–01, reserving the right to appeal the court's denial of his suppression motion.
[¶ 5] Fetch argues the result of the blood test should have been suppressed under the Fourth Amendment and N.D. Const. art. I, § 8, because he did not voluntarily consent to the blood draw and Arndt did not have a search warrant to have the test performed.
[¶ 6] In State v. Smith, 2014 ND 152, ¶ 4, 849 N.W.2d 599, we said:
(Citations and quotation marks omitted).
[¶ 7] The administration of breath or blood tests to determine alcohol consumption is a search subject to the warrant requirement, and warrantless searches are unreasonable unless they fall within an exception to the warrant requirement. See McCoy v. North Dakota Dep't of Transp., 2014 ND 119, ¶ 10,...
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...provides, “If a person refuses to submit to testing under section 39–20–01..., none may be given.” See State v. Fetch, 2014 ND 195, ¶ 8, 855 N.W.2d 389.The criminal refusal provision is contained in N.D.C.C. § 39–08–01, which provides in relevant part:1. A person may not drive or be in actu......
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