State v. Hawkins, No. 20160354

• Court: United States State Supreme Court of North Dakota
• Writing for the Court: Kapsner, Justice.
• Citation: 898 N.W.2d 446
• Parties: STATE of North Dakota, Plaintiff and Appellant v. John William HAWKINS, Defendant
• Docket Number: No. 20160354
• Decision Date: 12 July 2017

898 N.W.2d 446

STATE of North Dakota, Plaintiff and Appellant
v.
John William HAWKINS, Defendant

No. 20160354

Supreme Court of North Dakota.

Filed July 12, 2017

Charles B. Neff, Assistant State's Attorney, McKenzie County State's Attorney, Watford City, ND 58854, for plaintiff and appellant.

John W. Hawkins, defendant; no appearance.

Kapsner, Justice.

¶ 1] The State appeals from a district court order granting John Hawkins' motion to suppress evidence. We conclude sufficient competent evidence supports the district court order suppressing blood test results, and its decision is not contrary to the manifest weight of the evidence. We affirm the district court order suppressing the results of Hawkins' blood test.

I

[¶ 2] On January 30, 2016, an officer initiated a traffic stop on Hawkins after observing the vehicle driving erratically. The officer suspected Hawkins was driving under the influence and performed some field sobriety tests. After conducting field sobriety tests, the officer believed Hawkins to be under the influence of alcohol. The officer read Hawkins an implied consent advisory and asked him to submit to an on-site screening test. Hawkins refused the on-site screening test. After Hawkins refused, he was placed under arrest, handcuffed, and placed in the back of the patrol car. The officer secured Hawkins' vehicle. While the officer was gone, Hawkins said to himself that he would take a blood test. The officer returned to the patrol car and read Hawkins his Miranda rights. The officer then read an implied consent advisory a second time, but before the officer could complete the advisory, Hawkins said he would take a blood test. The officer told Hawkins he still needed to read him the advisory, read the implied consent advisory again, and asked if he would consent to a chemical test. The officer testified Hawkins said, "yes." The officer drove Hawkins to a local hospital where his blood was

[898 N.W.2d 449

drawn for testing. Following the test, Hawkins was charged with driving under the influence of alcohol or drugs in violation of N.D.C.C. § 39–08–01.

¶ 3] Hawkins moved to suppress the results of the blood test. Hawkins argued the test was conducted in violation of N.D.C.C. § 39–20–01(2) because the officer never told Hawkins he was being, or would be, charged with DUI before conducting the test as required by the statute. The State responded and opposed the motion. The district court held a hearing on May 11, 2016. The arresting officer testified, and Hawkins submitted a copy of the police officer's dash cam video into evidence. At the end of the hearing, the district court and the parties noted the Birchfield v. North Dakota decision, (later issued as ––– U.S. ––––, 136 S.Ct. 2160, 195 L.Ed.2d 560 (2016) ), was likely to be issued by the United States Supreme Court sometime soon, and the district court took the matter under advisement.

[¶ 4] On July 1, 2016, Hawkins filed an additional motion to suppress in light of the Birchfield decision, and the district court held a hearing on August 31, 2016. At the hearing, the arresting officer testified again, and the State submitted into evidence a copy of the in-car video from the night of the arrest. Hawkins argued the blood test was taken in violation of his Fourth Amendment rights. At the hearing, the State argued consent was voluntary because the video showed Hawkins twice stated he would take a blood test while alone in the back of the patrol car. The State argued Hawkins was "basically begging for the blood test," and that under the totality of the circumstances, Hawkins' consent was voluntary. The district court entered an order suppressing the results of the blood test. In its order, the district court noted Hawkins' second motion, "implie[d] that any consent given in this case was not voluntary." The district court found Hawkins' consent was not voluntary under the totality of the circumstances. The State appealed.

II

[¶ 5] " Section 29–28–07, N.D.C.C., strictly limits the prosecution's right to appeal in a criminal case." State v. Boehm , 2014 ND 154, ¶ 6, 849 N.W.2d 239. "The State may appeal from an order suppressing evidence if the appeal is ‘accompanied by a statement of the prosecuting attorney asserting that the appeal is not taken for purpose of delay and that the evidence is substantial proof of a fact material in the proceeding.’ " Id. (quoting N.D.C.C. § 29–28–07(5) ).

The record reflects the State filed a notice of appeal and a statement of the prosecuting attorney on October 20, 2016. The statement of the prosecuting attorney asserts the appeal was not taken for purposes of delay, and the evidence suppressed was "crucial evidence in the Driving Under the Influence case against the Defendant." The State complied with the requirements of N.D.C.C. § 29–28–07(5), and "a review of the facts clearly demonstrates the relevance of the evidence suppressed." Boehm , at ¶ 6 (quoting State v. Emil , 2010 ND 117, ¶ 6, 784 N.W.2d 137 ). Thus, the State can appeal.

III

[¶ 6] On appeal, the State argues the district court erred by finding Hawkins' consent was involuntary. The State asks this Court to reverse the...