State v. Gawryluk
Decision Date | 28 June 1984 |
Docket Number | No. 994,994 |
Citation | 351 N.W.2d 94 |
Parties | The STATE of North Dakota, Plaintiff and Appellant, v. James GAWRYLUK, Defendant and Appellee. Crim. |
Court | North Dakota Supreme Court |
Jay V. Brovold, State's Atty., Medora, for plaintiff and appellant.
Ronald A. Reichert [argued] of Freed, Dynes, Reichert & Buresh, Dickinson, for defendant and appellee.
This is an appeal by the State from an order entered in the Billings County Court granting the defendant's motion to suppress evidence of the result of a breathalyzer test. We dismiss the appeal.
The appellee, James Gawryluk, was charged with the offense of driving while under the influence of intoxicating liquor, in violation of Sec. 39-08-01, of the North Dakota Century Code. 1 Prior to trial, Gawryluk filed a motion to suppress evidence of the result of a breathalyzer test on the following grounds:
Gawryluk filed a brief in support of his motion and an accompanying affidavit. The State filed its brief in opposition to Gawryluk's motion to suppress. The County Court then took the matter under advisement, pursuant to Rule 3.2, NDROC. In its memorandum opinion dated January 4, 1984, the County Court made the following conclusions of law:
The State has brought this appeal pursuant to Sec. 29-28-07(5), N.D.C.C., which provides that the State may appeal from an order suppressing evidence:
"5. ... when accompanied by a statement of the prosecuting attorney asserting that the deprivation of the use of the [suppressed evidence] ... has rendered the proof available to the state with respect to the criminal charge filed with the court, (1) insufficient as a matter of law, or (2) so weak in its entirety that any possibility of prosecuting such charge to a conviction has been effectively destroyed...."
In this case, the statement required by Sec. 29-28-07(5), N.D.C.C., to be filed by the prosecuting attorney states, in pertinent part, as follows:
The right of appeal in North Dakota is statutory and is a jurisdictional matter which we may consider sua sponte. State v. Lawson, 321 N.W.2d 514 (N.D.1982); State v. Jefferson Park Books, Inc., 314 N.W.2d 73 (N.D.1981). The State has only such right of appeal in a criminal action as is conferred by law. State v. Fields, 294 N.W.2d 404 (N.D.1980); State v. McEnroe, 69 N.D. 445, 287 N.W. 817 (1939). One attempting an appeal must show his right thereto. City of Bismarck v. Walker, 308 N.W.2d 359 (N.D.1981).
Section 29-28-07(5), N.D.C.C., requires a prosecuting attorney to establish his right to appeal by explaining how the granting of a motion to suppress has rendered evidence insufficient as a matter of law or how the State's case has been effectively destroyed. The explanation may be contained in the statement filed pursuant to Sec. 29-28-07(5), N.D.C.C., or in the State's brief filed for the purposes of an appeal. State v. Dilger, 322 N.W.2d 461, 463 (N.D.1982). It need not be based on the record, but may include other evidence in order to establish that further prosecution without the suppressed evidence would be futile, not just somewhat more difficult. State v. Frank, 350 N.W.2d 596, 598 (N.D.1984). A review of the prosecutor's statement is to be guided by "the utmost deference for the prosecutor's judgment in evaluating the remaining proof". State v. Dilger, supra 322 N.W.2d at 463. We will...
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...prosecution without the suppressed evidence would be futile and not merely more difficult. State v. Anderson, supra; State v. Gawryluk, 351 N.W.2d 94, 96 (N.D.1984); State v. Frank, 350 N.W.2d 596, 598 (N.D.1984). The prosecutor's explanation in this case reads as "The officer involved in t......
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...§ 39-08-01(1)(b). State v. Whitney, 377 N.W.2d 132, 133 (N.D.1985) (citing State v. Kimball, 361 N.W.2d 601 (N.D.1985); State v. Gawryluk, 351 N.W.2d 94 (N.D.1984); State v. Kisse, 351 N.W.2d 97 (1984)). "[T]he crime created by subsection (1)(b) is driving while under the influence of intox......
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State v. Schindele, Cr. N
...the prosecutor's judgment is not, however, the same as saying the prosecutor need offer no support for his conclusion." State v. Gawryluk, 351 N.W.2d 94, 96 (N.D.1984). The language in section 29-28-07(5), NDCC, requiring the prosecutor to assert that the suppressed evidence is "a substanti......
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