State v. Keller
Decision Date | 15 March 2016 |
Docket Number | No. 20150132.,20150132. |
Parties | STATE of North Dakota, Plaintiff and Appellee v. Peggy Frederick KELLER, Defendant and Appellant. |
Court | North Dakota Supreme Court |
Stephenie L. Davis, McKenzie County Assistant State's Attorney, Watford City, ND, for plaintiff and appellee.
James O. Thompson, Williston, ND, for defendant and appellant.
, Justice.
[¶ 1] Keller appeals from a criminal judgment after a jury found her guilty of refusing to submit to alcohol testing in violation of N.D.C.C. § 39–08–01(2)(a)
. Keller argues the district court erred in failing to give her requested jury instructions. We affirm.
[¶ 2] Watford City Police Officer Dylan Bostic stopped Keller after her vehicle drifted within her driving lane. When Bostic approached the vehicle he smelled alcohol and observed Keller had glossy, red eyes and she admitted she had been drinking. Bostic read North Dakota's implied consent advisory to Keller and requested that she submit to a preliminary breath test. When Keller would not take the preliminary breath test, Bostic arrested her for refusal. Bostic placed Keller in his patrol car, again informed her of the North Dakota implied consent advisory and requested that she submit to a chemical test by blood draw. Bostic testified Keller told him she did not know what to do and asked him if she should get an attorney. Bostic informed Keller that he could not give legal advice and that he would consider her response to be refusal.
[¶ 3] At trial Keller asked the district court to instruct the jury that an individual accused of driving under the influence has a limited statutory right to contact an attorney before deciding whether to submit to alcohol testing. Keller requested the jury be instructed that a request to consult an attorney is a defense to the crime of refusal. Keller also asked the district court to instruct the jury that affirmative refusal is required to find guilt, and the accused does not affirmatively refuse if she requests to contact an attorney and law enforcement fails to provide an opportunity to do so. The district court refused to give Keller's requested instructions and a jury found her guilty of refusing to submit to alcohol testing in violation of N.D.C.C. § 39–08–01(2)(a)
. Keller appeals.
[¶ 4] Keller argues she was entitled to jury instructions on her right to counsel before submitting to a chemical test and requiring the jury to find she affirmatively refused the test.
State v. Martinez, 2015 ND 173, ¶ 8, 865 N.W.2d 391
.
[¶ 5] Keller requested instructing the jury on her right to counsel:
This proposed jury instruction is an incomplete statement of the law. This Court held a qualified statutory right to consult with an attorney exists before deciding whether to submit to a chemical test in Kuntz v. State Highway Commissioner, 405 N.W.2d 285 (N.D.1987)
. In Kuntz, we stated "that if an arrested person asks to consult with an attorney before deciding to take a chemical test, he must be given a reasonable opportunity to do so if it does not materially interfere with the administration of the test." Kuntz, 405 N.W.2d 285, 290 (N.D.1987). Because the proposed jury instruction does not include a qualification that the limited right to consult with an attorney may not interfere with testing, it is an incomplete statement of the law.
[¶ 6] Keller also requested a jury instruction on affirmative refusal of testing. The requested instruction stated:
This proposed jury instruction is an inaccurate statement of the law.
[¶ 7] Keller relies on Grosgebauer v. North Dakota Dept. of Transp., 2008 ND 75, 747 N.W.2d 510
to support her position that withdrawing implied consent requires affirmative refusal to be tested. In Grosgebauer, we said "[f]or those able to make a conscious decision, refusal does not have to be explicitly stated; ‘stubborn silence’ or a ‘physical failure to cooperate’ may also indicate refusal." Grosgebauer, 2008 ND 75, ¶ 9, 747 N.W.2d 510 (citing Mayo v. Moore, 527 N.W.2d 257, 260 (N.D.1995) ...
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