State v. Murphy, Cr. N
| Decision Date | 19 May 1994 |
| Docket Number | Cr. N |
| Citation | 516 N.W.2d 285 |
| Parties | STATE of North Dakota, Plaintiff and Appellee, v. James William MURPHY, Defendant and Appellant. o. 930308. |
| Court | North Dakota Supreme Court |
Alan S. Dohrmann (argued), Asst. State's Atty., Loralyn K. Clark, Third Year Law Student under Senior Practice Rule, Grand Forks, for plaintiff and appellee.
Robert J. Woods (argued), Forest River, for defendant and appellant.
A jury found James Murphy guilty of driving under the influence of intoxicating liquor, in violation of NDCC Sec. 39-08-01. Arguing the jury instructions were faulty, Murphy appeals from the judgment of conviction. We affirm.
The facts are not in dispute. On May 23, 1993, the Grand Forks Police Department received a telephone call regarding a possible drunk driver. The call was placed to the police department by Dale Look, a resident of the city of Grand Forks.
Look had observed Murphy park a pickup in an alley in Grand Forks. Murphy got out of the vehicle and had difficulty walking. He then urinated by the garage. Look placed a telephone call to the Grand Forks Police Department to report the incident.
A few moments later, Officer Donald Beck of the Grand Forks Police Department arrived at the scene. Officer Beck did not observe anyone in the area at that time. He parked approximately one block from Murphy's vehicle and waited.
Shortly thereafter, Officer Beck observed Murphy driving the pickup west on 8th Avenue in Grand Forks. He began following the vehicle as it proceeded west. Officer Beck noticed the vehicle weaving on the street. He observed the vehicle make a right hand turn without a turn signal and a left hand turn without a turn signal.
At this point, Officer Beck activated his red lights indicating that he wanted Murphy to come to a stop. Murphy did not come to an immediate stop, rather, he continued driving for approximately one-half block and turned into a driveway at a residence. Murphy stopped after he turned into the driveway.
Officer Beck detected an odor of alcohol about Murphy. He also noted bloodshot eyes and slurred speech. Further, he observed that Murphy had a difficult time walking and described his manner of walking as being "slow and deliberate."
Officer Beck arrested Murphy for driving under the influence of intoxicating liquor in violation of NDCC Sec. 39-08-01, and informed him of his rights under Miranda. Murphy was transported to the Grand Forks County Jail where he was booked. While at the county jail, Officer Beck read the implied consent advisory to Murphy and asked him to submit to an Intoxilizer test for chemical testing. Murphy exercised his statutory right to refuse to submit to testing.
On September 14, 1993, a jury trial was held in the Grand Forks County Court. The jury found Murphy guilty of driving under the influence of alcohol. The court sentenced Murphy to 62 days in jail, $1,000.00 fine, and ordered an evaluation for chemical dependency. Murphy appeals from this judgment of conviction.
The issue on appeal is narrow in scope. Murphy argues that the trial court erred in instructing the jury on the issue of refusal to submit to a chemical test. He contends the jury should have been instructed that evidence of refusal is within the rights of the defendant, and may not be used to determine his guilt. We disagree.
The purpose of jury instructions is to apprise the jury of the state of the law. N.D.R.Crim.P.Rule 30(a). The court instructed the jury as follows:
North Dakota's implied consent law states:
"Any person who operates a motor vehicle on a highway or on public or private areas to which the public has a right of access for vehicular use in this state is deemed to have given consent, and shall consent, subject to the provisions of this chapter, to a chemical test, or tests, of the blood, breath, saliva, or urine for the purpose of determining the alcoholic, other drug, or combination thereof, content of the blood."
NDCC Sec. 39-20-01. Consequences of refusing to take a test include revocation of driving privileges, see generally NDCC ch. 39-20 (implied consent chapter), and proof of refusal is admissible as evidence, NDCC Sec. 39-20-08. Our law states:
"If the person under arrest refuses to submit to the test or tests, proof of refusal is admissible in any civil or criminal action or proceeding arising out of acts alleged to have been committed while the person was driving or in actual physical control of a vehicle upon the public highways while under the influence of intoxicating liquor, drugs, or a combination thereof."
Murphy's argument carefully steers clear of constitutional issues. 1 Instead, he argues that the instruction allowing the jury to consider evidence of refusal in determining guilt contradicts the statutory right to refuse testing under Sec. 39-20-04. Murphy's interpretation of Sec. 39-20-08 would allow proof of refusal as evidence, but would not allow it to be considered in determining guilt. Murphy's proposed jury instruction read:
This proposed jury instruction conflicts with our...
To continue reading
Request your trial
-
State v. Birchfield, 20140109.
...2013, this Court had observed “[t]here is no Federal constitutional right to be entirely free of intoxication tests,” State v. Murphy, 516 N.W.2d 285, 286 n. 1 (N.D.1994), and noted a “driver has only a conditional right to refuse a chemical test” because “[a]mong the conditions imposed upo......
-
McCoy v. N. Dakota Dep't of Transp.
...in any civil or criminal action’); § 39–20–04 (revocation of privilege to drive upon refusal to submit to testing).” State v. Murphy, 516 N.W.2d 285, 287 (N.D.1994) (citing Neville, 459 U.S. at 565, 103 S.Ct. 916). We agree with the rationale and conclusions in Brooks and Moore that a drive......
-
State v. Kordonowy, 20140327.
...person has a right under North Dakota law to refuse to submit to a chemical test for blood alcohol evaluation.”See State v. Murphy, 516 N.W.2d 285, 286 (N.D.1994).The district court denied Kordonowy's request to include the instruction, stating it did not believe the instruction accurately ......
-
State v. Huber
...instructions is to apprise the jury of the state of the law.' " State v. Murphy, 527 N.W.2d 254, 256 (N.D.1995) (quoting State v. Murphy, 516 N.W.2d 285, 286 (N.D.1994)). "Taken as a whole, the jury instructions 'must correctly and adequately inform the jury of the applicable law and must n......