State v. Kolstad
| Decision Date | 07 May 2020 |
| Docket Number | No. 20190228,20190228 |
| Citation | 942 N.W.2d 865 |
| Parties | STATE of North Dakota, Plaintiff and Appellant v. Stanley James KOLSTAD , Defendant and Appellee |
| Court | North Dakota Supreme Court |
Megan J. Kvasager Essig, Assistant State’s Attorney, Grand Forks, ND, for plaintiff and appellant.
David D. Dusek, Grand Forks, ND, for defendant and appellee.
[¶1] The State of North Dakota appealed from a district court order dismissing a criminal charge of refusing to submit to a chemical breath test. We reverse and remand.
[¶2] In December 2018, Officer Nelson of the University of North Dakota Police Department conducted a traffic stop of Stanley Kolstad for suspicion of driving under the influence. Kolstad performed field sobriety tests and a preliminary breath test (PBT). Prior to performing the PBT, Kolstad informed Nelson that he had asthma
. Nelson testified he was unable to obtain a PBT result because Kolstad was filling his cheeks with air while performing the test. Kolstad was arrested for DUI and refusing to submit to a chemical test.
[¶3] Kolstad was transported to the UND police station to be given an Intoxilyzer breath test. Prior to the Intoxilyzer test, Nelson read Kolstad the implied consent advisory. But, because Nelson was not a certified operator of the Intoxilyzer machine, Officer Waltz conducted the test. Prior to the test, Kolstad informed Waltz he had asthma
. The Intoxilyzer test results were deficient. Waltz testified Kolstad was not providing enough air for the test machine to provide a valid result.
[¶4] Kolstad was charged with driving under the influence and refusing to submit to a chemical test. Kolstad’s counsel made a discovery request to the State under N.D.R.Crim.P. 16. In the request, Kolstad’s counsel requested copies of any audio or video recordings taken by police officers. Kolstad’s counsel also requested the State inform him whether any sound or video recordings taken of Kolstad were subsequently "altered, edited, destroyed, or discarded." The State provided Kolstad’s counsel with dash camera footage from Nelson’s police car that had been taken at the scene of the arrest, but the State did not provide any body camera footage from either Nelson or Waltz.
[¶5] At trial, Nelson testified he read Kolstad the implied consent advisory from a card issued by the UND police department to all UND police officers. Nelson could not recall what version of the implied consent advisory was on the card at the time, but he testified it would be the same advisory that was on the cards issued to all other UND police officers. Nelson testified that his body camera had been recording during Kolstad’s performance of the field sobriety tests, during the PBT, while Nelson read Kolstad the implied consent advisory prior to the Intoxilyzer test, and while Kolstad performed the Intoxilyzer test. However, Nelson testified that because of technology problems UND was having with its servers at the time, his body camera footage was inadvertently deleted when he attempted to upload it to the servers. Because of this malfunction, Nelson was unable to recover or view his body camera footage. Waltz also testified that his body camera was recording for a brief time before Kolstad performed the Intoxilyzer test. When asked by Kolstad’s counsel if his body camera footage was successfully uploaded to the server, Waltz replied that it was.
[¶6] Upon learning that Waltz’s body camera footage was successfully uploaded, Kolstad’s counsel moved to dismiss the case because the State did not provide any body camera footage in discovery as requested. Outside the presence of the jury, the court heard argument from the defense and the State. The defense argued that in its discovery request, it asked for all audio and video recordings taken by police officers and was provided no body camera footage by the State. The defense alleged the body camera footage would have shown the implied consent advisory read by Nelson did not reference urine tests, which the defense contended would be grounds for suppression under State v. Vigen , 2019 ND 134, 927 N.W.2d 430. The defense also alleged the footage would have shown whether Kolstad was refusing the test or was unable to perform the test due to his asthma
. The defense argued the appropriate remedy was for the alleged discovery violation was dismissal, stating:
[¶7] The State asserted it was never in possession of Nelson’s or Waltz’s body camera footage and was never able to view any of the footage. The State further contended that Vigen was inapplicable since it dealt with suppression of a test result and did not apply to refusal. The State argued that trial continue on "and that there be no dismissal or continuance."
[¶8] Ultimately, the court granted the defense’s motion to dismiss. The court stated:
Unusual situation. Usually doesn't crop up within about the last hour of trial, that there is a video that some witness testified to. Officer Waltz certainly did testify that there was a video; that he had a body cam, which may go to the refusal itself. Court is going to grant the Motion to Dismiss Count II [refusal], because at this late stage it would have been a suppression motion otherwise; that entire test would have been a suppression.
After dismissing the refusal charge, the court took a recess.
[¶9] Upon returning from the recess, the State made a motion for reconsideration, and additional testimony was taken from Waltz. Waltz testified that even though his body camera footage was successfully uploaded, the footage, like Nelson’s, was inadvertently deleted and unable to be viewed because of the technology problems with the UND servers at the time. On cross-examination, Waltz was asked if he ever notified the State that body camera footage had been recorded but was deleted because of technology problems. Waltz replied that he verbally informed the State approximately a week before trial that body camera footage was recorded but was deleted. Waltz further testified that every UND police officer was distributed the same card containing the same implied consent advisory, and at the time of Kolstad’s arrest, the implied consent advisory contained in the card only referenced breath tests, not urine tests.
[¶10] The court heard additional argument. The defense argued that had the State disclosed that body camera footage had been recorded but was deleted because of technology problems with the UND servers, the defense had experts readily available to try and recover the deleted footage. The defense maintained the only remedy for the alleged discovery violation was dismissal. The State again argued it was never in possession of the body camera footage and was never able to view the footage, and that dismissal was not the proper remedy for the alleged discovery violation. The court denied the State’s motion for reconsideration, and trial was adjourned until the following day.
[¶11] On the second day of trial, the court clarified that "the ruling to dismiss the charge was based on discovery violations, Rule 16, not as a motion in limine to suppress." The court also offered the following explanation as to why dismissal was appropriate:
One thing I'm going to say for the record here, it’s starting to become an issue with discovery on these body cams, and stuff. Mr. Dusek yesterday argued that the State has, at least, control in some way of evidence, even though it’s in the hands of law enforcement. When those discovery responses go out, at that time the State should be—or any party should be contacting their witnesses that may hold that evidence to find out what the availability is. And I think yesterday the statement was, that that didn't happen until a week before trial. I can understand that you don't want to invest a lot of time into your witnesses before you go to trial in the event of a plea agreement. However, in order to respond to discovery, you have to do that. It’s not a good practice. It’s going to lead to stuff like this, that turned into a circus yesterday. This should have been a very clear-cut thing where we could have had—that’s why I pushed getting motions in limine in, because none of this stuff would have come up. You got a jury that should have been here only a day that weren't here. We probably would have only heard one witness. And, actually, the end result would have been, I probably would have given a continuance so that Mr. Dusek would then try to retrieve those body cams. But he had a valid point, that on refusal to test the actual, quote, "refusal behavior" is pretty prejudicial if you can prove otherwise on a tape, especially if you are using a medical excuse for it. Typically, on other things, probably not as much. Officer Nelson’s body cam, to me, is not as prejudicial not having it, because you can hear voices on the tape. He was here to testify. He testified fully. I gave both of you an opportunity, before we rested yesterday, for further examination and neither one of you took it. So as far as I'm concerned, all the evidence is in.
[¶12] On appeal the State argues the alleged discovery violation does not rise to a constitutional violation of Kolstad’s due process rights, and the district court abused its discretion in dismissing the refusal charge. Kolstad argues the district court’s order dismissing the refusal charge is not appealable, and if it is appealable, the court did not abuse its discretion in dismissing the charge.
[¶13] In a criminal action, the State’s only right of appeal is expressly granted by statute. State v. Bernsdorf , 2010 ND 123, ¶ 5, 784 N.W.2d 126. Section 29-28-07(1), N.D.C.C., allows the State to appeal from "[a]n order quashing an information or indictment or any count thereof." However, "it is well established...
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