State v. Hansen

• Decision Date: 17 July 1989
• Docket Number: Cr. N
• Parties: STATE of North Dakota, Plaintiff and Appellant, v. James E. HANSEN, Defendant and Appellee. o. 890001.
• Court: North Dakota Supreme Court

Page 330

444 N.W.2d 330

STATE of North Dakota, Plaintiff and Appellant, v. James E. HANSEN, Defendant and Appellee.

Cr. No. 890001.

Supreme Court of North Dakota.

July 17, 1989.

Allen Koppy, Morton County State's Atty., Mandan, for plaintiff and appellant.

Rodney K. Feldner, Mandan, for defendant and appellee.

VANDE WALLE, Justice.

This is an appeal by the State from an order in which James E. Hansen's motion to suppress the results of a blood-alcohol test was granted. ¹ We affirm.

On July 4, 1988, Hansen was driving a motorcycle in Morton County. Riding as a passenger with him was Wayne Aldinger. As they were traveling west of Mandan, they collided with an automobile driven by Blaine Engelstad. Aldinger was thrown from the motorcycle and struck a sign. Hansen also was thrown from the motorcycle and his right arm was severed above the elbow.

Within minutes of the accident, the Bismarck-Mandan Metro Area Ambulance Service arrived at the scene. Chris Kocourek examined Aldinger and determined that he was dead. Kocourek next attended to Hansen, placing a tourniquet on his arm and an intravenous transfusion in his leg. Hansen was immediately thereafter taken to the Mandan Hospital.

Shortly after the ambulance departed, Albert Salvatore of the North Dakota Highway Patrol arrived at the scene of the accident. In investigating the accident, Salvatore learned that Hansen was the driver of the motorcycle and that Aldinger was dead as a result of the accident. He also learned that the paramedic crew smelled the odor of alcohol emanating from Hansen.

Salvatore contacted North Dakota Highway Patrol Officer Paul Knaak and asked Knaak to proceed to the Mandan Hospital, place Hansen under arrest, and request a sample of Hansen's blood. When Knaak arrived at Mandan Hospital, he was informed that Hansen had been taken to St. Alexius Medical Center in Bismarck for further treatment. En route to St. Alexius Medical Center, Knaak called State Radio and requested that the personnel at St. Alexius be informed that a sample of Hansen's blood would be needed.

Nurse Connie Broesamle took the call from State Radio. She was informed that a sample of Hansen's blood would be needed before he was transferred to the operating room. Broesamle retrieved a blood-alcohol kit, gave it to Nurse Mary Scott, and directed her to take a blood sample. After the attending physician placed a central-line catheter in Hansen's left subclavian vein, Scott withdrew a blood sample from the catheter.

When Knaak arrived at St. Alexius, a blood sample had already been obtained from Hansen. Knaak was permitted to see Hansen. He asked the defendant if his name is James Hansen, whether he was involved in an accident, and who was driving the motorcycle at the time of the accident. Hansen answered all the questions. Knaak informed Hansen that he was under arrest for driving while under the influence of alcohol.

Hansen was formally charged with driving while under the influence of alcohol in violation of Section 39-08-01, N.D.C.C. He brought a motion to suppress the results of the blood test, arguing that there was no probable cause to believe Hansen was in violation of Section 39-08-01; the sample was obtained prior to an arrest being made; and the sample was not taken pursuant to a valid search warrant. The State argued that Section 39-20-01.1, N.D.C.C., permitted the blood sample to be taken without an arrest under the circumstances of this case.

The trial court found that Section 39-20-01.1 requires that an individual be placed under arrest before a sample may be obtained. Consequently, it granted Hansen's motion to suppress the results of the blood test. The State appealed from that order.

On appeal, the State renewed its contention that Section 39-20.01.1 permits the warrantless withdrawal of an individual's blood without any constitutional requirement of a prior arrest. It concedes that the blood sample was obtained without a search warrant, without Hansen's consent, and without first placing Hansen under arrest.

Section 39-20-01.1 provides:

"Notwithstanding section 39-20-01 or 39-20-04, when the driver of a vehicle is involved in an accident resulting in the death or serious bodily injury, as defined in section 12.1-01-04, of another person, and there is probable cause to believe that the driver is in violation of section 39-08-01, the driver may be compelled by a police officer to submit to a test or tests of the driver's blood, breath, saliva, or urine to determine the alcohol concentration or the presence of other drugs or substances."

In State v. Anderson, 336 N.W.2d 634 (N.D.1983), we observed that our implied-consent statute, Section 39-20-01, requires that, absent consent, an individual be placed under arrest before the State may obtain a blood sample. The issue before us now is whether Section 39-20-01.1 dispenses with the arrest requirement when a person has been involved in an accident resulting in death or serious bodily injury.

The State cites two cases which it claims were decided upon statutes similar to Section 39-20-01.1 in which the courts concluded that no arrest was necessary prior to obtaining a blood sample: Cox v. State, 473 So.2d 778 (Fla.Dist.Ct.App.1985), and Commonwealth v. Cieri, 346 Pa.Super. 77, 499 A.2d 317 (1985). Those cases are not persuasive, however, because the implied-consent statutes of Florida and Pennsylvania do not require an arrest prior to obtaining a blood sample, as does Section 39-20-01. Compare Filmon v. State, 336 So.2d 586 (Fla.1976), appeal dismissed 430 U.S. 980, 97 S.Ct. 1675, 52 L.Ed.2d 375 (1977); State v. Anderson, supra; Commonwealth v. Quarles, 229 Pa.Super. 363, 324 A.2d 452 (1974).

Section 39-20-01.1 is subject to two reasonable constructions, i.e., that it intended to deny the arrested driver involved in an accident that results in death or serious injury the right to refuse the chemical test or, not only that such driver has no right to refuse the test after arrest but need not be arrested in the first instance to permit the taking of the test. Because both constructions are reasonable we deem the statute ambiguous and resort to legislative history to assist us in determining its intent. See First Security Bank v. Enyart, 439 N.W.2d 801 (N.D.1989).

Section 39-20-01.1 was enacted in 1987. See 1987 N.D.Sess.Laws Ch. 460, Sec. 10. The State quotes the following from the testimony given at a legislative hearing on Senate Bill No. 2468 as authority for its proposition that no arrest is required under Section 39-20-01.1:

"[Section 39-20-01.1] modifies the implied consent law and allows an officer to compel a driver, who has been involved in an accident that results in death or serious personal injury of another, to submit to a chemical test. The present implied consent law requires an arrest before a chemical test can be administered and also states that if the driver refuses to take a chemical test 'none shall be given.' In a series of decisions, including State v. Anderson, 336 N.W.2d 634 (N.D.1983), the North Dakota Supreme Court has indicated that if directly presented with the issue, they would likely hold that the present implied consent law prohibits (in a refusal situation) the obtaining of a chemical test. This provision is patterned after the Uniform Vehicle Code."

The above-quoted summary was presented by Bruce Quick, Deputy Attorney General, to the House Transportation Committee. Quick also participated in the discussion of Senate Bill No. 2468 before a conference committee. The minutes of that hearing state:

"Representative Shaft said that he wanted to look at some amendment that would not necessarily change the intent of allowing compelled blood tests. That would be picking out that certain area of implied consent where you wouldn't have that right of refusal for serious bodily injury or fatal crashes. The amendments would add some protective language for the individual. The two areas would be that the blood test not take place pre-arrest, which probably wouldn't happen according to case law. However, I would like to see the statute say so."

"Senator Stenehjem: I think they have to be arrested before hand....

. . . . .

"Bruce Quick: The intent of this [bill] is to exempt implied consent law in vehicular homicide cases, basically. Implied consent law says that if you refuse to take a test, none shall be given. Other states have done this either through appellate court decisions or through legislation like this. It basically is word for word from the Uniform Vehicle Code. My interpretation of this, and what the ND Supreme Court has said, is an arrest would be required. If you want to make it clear, I would have no objection to amending the language where it says there's probable cause." [Emphasis added.]

We have previously observed that, although as a constitutional matter a blood test may be taken without the consent of the person arrested as a search incident to a lawful arrest [Schmerber v. California, 384 U.S. 757, 86 S.Ct. 1826, 16 L.Ed.2d 908 (1966) ], our Legislature in enacting Section 39-20-04 specified that if a person refuses to submit to testing under Section 39-20-01, no test is to be given. State v. Solberg, 381 N.W.2d 197 (N.D.1986).

The above legislative material indicates that Section 39-20-01.1 was designed to create an exception to our implied-consent law that prohibits chemical testing for blood-alcohol content when an individual chooses to refuse. It does not dispense with the requirement for arrest prior to obtaining a blood sample.

Furthermore, although we are reluctant to decide a constitutional issue if the case may be disposed of on other grounds, we recognize that a serious constitutional question arises if we interpret Section 39-20-01.1 to not require an arrest.

Implied-consent statutes generally require an arrest as a precondition to their applicability. See, e.g., N.Y. Veh. & Traf. Law Sec. 1194 (McKinney Supp.1989); Sec....