State v. Montgomery
Decision Date | 22 January 2018 |
Docket Number | No. 20170192,20170192 |
Citation | 905 N.W.2d 754 |
Parties | STATE of North Dakota, Plaintiff and Appellee v. Shawn Alvah MONTGOMERY, Defendant and Appellant |
Court | North Dakota Supreme Court |
Derek K. Steiner, Assistant State's Attorney, Bismarck, ND, for plaintiff and appellee.
Chad R. McCabe, Bismarck, ND, for defendant and appellant.
[¶ 1] Shawn Alvah Montgomery appeals from a criminal judgment entered after his conditional guilty plea to a charge of driving under the influence. Montgomery argues the State violated his Fourth Amendment right to be free from an unreasonable search by compelling his consent to a blood test. We affirm, concluding the district court did not err in denying Montgomery's motion to suppress.
[¶ 2] On October 1, 2016, Sergeant Michael Stoltz stopped Montgomery's vehicle for speeding. Sergeant Stoltz noticed signs of inebriation, conducted field tests, read the statutory implied consent advisory,1 and administered an onsite screening test. Sergeant Stoltz placed Montgomery under arrest after the test indicated Montgomery was above the legal limit. Sergeant Stoltz then read Montgomery his Miranda rights and the statutory implied consent advisory a second time. Sergeant Stoltz did not read the criminal penalties portion of the advisory at first, but read it to Montgomery the second time. Montgomery requested a blood test before Sergeant Stoltz reached the end of the advisory to ask for consent to a chemical test. Montgomery later recalled feeling "intimidated," and testified he would have taken a breath test instead of a blood test.
[¶ 3] On October 1, 2016, the State charged Montgomery with driving under the influence of alcohol in violation of N.D.C.C. § 39–08–01. Montgomery filed a motion to suppress, and the district court held a suppression hearing on January 30, 2017. At the suppression hearing the district court heard testimony from both Sergeant Stoltz and Montgomery as well as listened to the audio recording of the arrest. The district court noted an extended dialogue between Sergeant Stoltz and Montgomery, leaving Montgomery ample opportunity to ask questions before he volunteered to take a blood test. The district court denied the motion to suppress after finding Montgomery gave voluntary consent. Montgomery signed a conditional guilty plea on April 19, 2017, which was filed on April 25, 2017.
[¶ 4] Our standard of review for a trial court's ruling on a motion to suppress is well-established:
State v. Bjornson , 531 N.W.2d 315, 317 (N.D. 1995) (citations omitted) (quoting State v. Brown , 509 N.W.2d 69, 71 (N.D. 1993) ). State v. Kitchen , 1997 ND 241, ¶ 12, 572 N.W.2d 106 (citations omitted). Thus, we review whether sufficient competent evidence supported the district court's finding of voluntary consent, whether the district court correctly applied the law in its findings, and whether denial of Montgomery's motion to suppress was contrary to the manifest weight of the evidence. See Kitchen , at ¶¶ 11–12 ; Bjornson, at 317.
[¶ 5] A blood test is a search for purposes of the Fourth Amendment. Birchfield v. North Dakota , ––– U.S. ––––, 136 S.Ct. 2160, 2178, 195 L.Ed.2d 560 (2016) ; State v. Boehm , 2014 ND 154, ¶ 18, 849 N.W.2d 239. A warrantless search is presumptively unreasonable, but an exception to the warrant requirement may render a warrantless search reasonable. State v. Torkelsen , 2008 ND 141, ¶ 21, 752 N.W.2d 640. Consent is one such exception, provided the consent is voluntary. Id. The State bears the burden of showing voluntariness. Id. "[M]otorists cannot be deemed to have consented to submit to a blood test on pain of committing a criminal offense." Birchfield , at 2186.
State v. Syvertson , 1999 ND 134, ¶ 20, 597 N.W.2d 652 (citations omitted). "Because the district court is in a superior position to judge credibility and weight, we show great deference to the court's determination of voluntariness." State v. Torkelsen , 2008 ND 141, ¶ 21, 752 N.W.2d 640 (quotation marks omitted) (quoting State v. Genre , 2006 ND 77, ¶ 30, 712 N.W.2d 624 ).
[¶ 6] Montgomery argues the district court should have suppressed the blood test results because the State did not meet its burden of proving voluntary consent. Montgomery equates his situation to Hawkins , in which this Court upheld a motion to suppress blood test results. State v. Hawkins , 2017 ND 172, ¶ 10, 898 N.W.2d 446 ( ). In Hawkins , the defendant refused the onsite screening test after receiving an implied consent advisory, then asked to take a blood test before the officer could complete a second advisory. Id. at ¶ 2. At a subsequent suppression hearing the district court heard testimony from the arresting officer and reviewed dash cam footage. Id. at ¶ 3. The district court in Hawkins expressly weighed the effect of criminal penalties for refusal to submit to a chemical test in analyzing the totality of the circumstances and conclude Hawkins' consent was not voluntary. Id. at ¶ 10.
[¶ 7] Here, the district court considered Montgomery's circumstances and ruled against suppression. See, e.g. , State v. Schmidt , 2016 ND 187, ¶¶ 27–32, 885 N.W.2d 65 ( ); State v. Lange , 255 N.W.2d 59, 64 (N.D. 1977) (). This Court shows great deference to the district court's fact-driven determination of voluntariness. Torkelsen , 2008 ND 141, ¶ 21, 752 N.W.2d 640. Even though the facts here are similar to Hawkins , the key difference is that the district court denied the motion to suppress because it found Montgomery's consent was voluntary. See 2017 ND 172, ¶ 10, 898 N.W.2d 446. We see no reason to break with our precedent.
[¶ 8] We note the district court's findings on Montgomery's voluntary consent neither specifically mention totality of the circumstances nor separately address the two non-determinative elements for voluntariness. See Syvertson , 1999 ND 134, ¶ 20, 597 N.W.2d 652. State v. Bergstrom , 2006 ND 45, ¶ 15, 710 N.W.2d 407 (citing VND, LLC v. Leevers Foods, Inc. , 2003 ND 198, ¶ 27, 672 N.W.2d 445 ) (incorporating the rationale behind N.D.R.Civ.P. 52(a) for criminal matters decided from the bench). Thus, while the district court did not use the "magic words" in its opinion, we can understand its reasoning.
[¶ 9] The district court's denial of Montgomery's motion to suppress was based on sufficient competent evidence and was not contrary to the manifest weight of that evidence. The district court correctly applied the law in its findings. We therefore affirm the district court's decision.
[¶ 10] Montgomery claims the officer should have advised him of the difference between penalties for refusal of breath versus blood chemical...
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