State v. Leppert
Citation | 2003 ND 15,656 N.W.2d 718 |
Decision Date | 19 February 2003 |
Docket Number | No. 20020160.,20020160. |
Parties | STATE of North Dakota, Plaintiff and Appellant, v. Mark LEPPERT, Defendant and Appellee. |
Court | North Dakota Supreme Court |
Jonathan R. Byers (argued), Assistant Attorney General, Bismarck, ND, and Daniel Dean Narum (on brief), State's Attorney, LaMoure, ND, for plaintiff and appellant.
Gary D. Neuharth, Oakes, for defendant and appellee.
[¶ 1] The State appealed an order denying its motion to require Mark Leppert to submit an oral swab under N.D.C.C. § 31-13-03 for a deoxyribonucleic acid ("DNA") sample. We hold 2001 amendments to N.D.C.C. § 31-13-03 authorize DNA testing of persons convicted of certain nonsexual felonies and establish a DNA data base for the test results of persons convicted of those offenses. We hold the amended statute is rationally related to a legitimate purpose and does not violate equal protection. We reverse and remand.
[¶ 2] In 1995, the Legislature enacted N.D.C.C. ch. 31-13 to authorize DNA testing and to establish a DNA data base. See 1995 N.D. Sess. Laws ch. 325. As originally enacted, N.D.C.C. § 31-13-03 required DNA testing of persons convicted of certain enumerated sexual offenses or attempted sexual offenses after August 1, 1995, or of persons in the custody of the Department of Corrections and Rehabilitation after that date as a result of a conviction for one of those offenses. Section 31-13-05, N.D.C.C., established a centralized database of DNA identification records for convicted sexual offenders.
[¶ 3] In 1997, Leppert was convicted of felonious restraint under N.D.C.C. § 12.1-18-02, and aggravated assault under N.D.C.C. §§ 12.1-17-02(2) and 12.1-03-01(1), and he was sentenced to the custody of the Department of Corrections and Rehabilitation.
[¶ 4] In 2001, the Legislature amended N.D.C.C. § 31-13-03 to require DNA testing of persons convicted after July 31, 2001 of certain nonsexual felonies, including aggravated assault and felonious restraint, or of persons in the custody of the Department of Corrections and Rehabilitation after that date as a result of a conviction for one of those offenses:
The court shall order any person convicted on or after August 1, 1995, of any sexual offense or attempted sexual offense in violation of sections 12.1-20-03, 12.1-20-03.1, 12.1-20-04, 12.1-20-05, 12.1-20-06, subdivision e or f of subsection 1 of section 12.1-20-07, or section 12.1-20-11 or any other offense when the court finds at sentencing that the person engaged in a nonconsensual sexual act or sexual contact with another person during, in the course of, or as a result of, the offense and any person who is in the custody of the department after July 31, 1995, as a result of a conviction of one of these offenses to have a sample of blood or other body fluids taken by the department for DNA law enforcement identification purposes and inclusion in law enforcement identification data bases. The court shall order any person convicted after July 31, 2001, of a felony offense contained in chapter 12.1-16, 12.1-17, or 12.1-18, section 12.1-22-01, or chapter 12.1-27.2 and any person who is in the custody of the department afer July 31, 2001, as a result of a conviction for one of these offenses to have a sample of blood or other body fluids taken by the department for DNA law enforcement identification purposes and inclusion in the law enforcement identification data bases. Notwithstanding any other provision of law, if the sentencing court has not previously ordered a sample of blood or other body fluids to be taken, the court retains jurisdiction and authority to enter an order that the convicted person provide a sample of blood or other body fluids as required by this section. Any person convicted after July 31, 1995, who is not sentenced to a term of confinement shall provide a sample of blood or other body fluids as a condition of the sentence or probation at a time and place specified by the sentencing court. The sentencing court shall assess the cost of the procedure against the person being tested. The department shall collect the cost of the procedure from the person being tested and transfer the amount collected to the state department of health for deposit in the general fund.
(Emphasis added.) However, the 2001 Legislature did not amend N.D.C.C. § 31-13-05 to include in the centralized DNA data base the test results for persons convicted of the additional nonsexual offenses listed in N.D.C.C. § 31-13-03.
[¶ 5] In January 2002, the State sought to require Leppert, who was then in the custody of the Department of Corrections and Rehabilitation as a result of his 1997 convictions for aggravated assault and felonious restraint, to submit a DNA sample by oral swab under the amended version of N.D.C.C. § 31-13-03. Leppert resisted and challenged the constitutionality of N.D.C.C. § 31-13-03 on several grounds, including his right to equal protection. The attorney general moved to intervene to defend the constitutionality of N.D.C.C. § 31-13-03. The trial court granted the attorney general's motion to intervene in a March 15, 2002 memorandum that requested further responses on the equal protection challenge. The court subsequently denied the State's motion to require Leppert to submit to DNA testing, concluding N.D.C.C. § 31-13-03 violated Leppert's equal protection rights under the United States Constitution:
The State appealed.
[¶ 6] The State argues the 2001 amendments to N.D.C.C. § 31-13-03 do not violate Leppert's equal protection rights. The State argues the rational basis standard of review applies to Leppert's equal protection challenge and an unarticulated legislative purpose may be considered in assessing that challenge. The State argues the 2001 amendments to N.D.C.C. § 31-13-03 are rationally related to a legitimate governmental purpose.
[¶ 7] The equal protection clauses of the state and federal constitutions do not prohibit legislative classifications or require identical treatment of different groups of people. Eagle v. North Dakota Workers Comp. Bureau, 1998 ND 154, ¶ 9, 583 N.W.2d 97. Legislative classifications are subject to different standards of scrutiny, depending on the right infringed by the challenged classification. Id. In Gange v. Clerk of Burleigh County Dist. Court, 429 N.W.2d 429, 433 (N.D. 1988) (citations omitted) we outlined three levels of judicial scrutiny for reviewing equal protection claims:
We apply strict scrutiny to an inherently suspect classification or infringement of a fundamental right and strike down the challenged statutory classification "unless it is shown that the statute promotes a compelling governmental interest and that the distinctions drawn by the law are necessary to further its purpose." When an "important substantive right" is involved, we apply an intermediate standard of review which requires a...
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