State v. Rambousek

• Decision Date: 28 November 1984
• Docket Number: Cr. N
• Citation: 358 N.W.2d 223
• Parties: STATE of North Dakota, Plaintiff and Appellant, v. Timothy RAMBOUSEK, Defendant and Appellee. o. 1017.
• Court: North Dakota Supreme Court

Page 223

358 N.W.2d 223

STATE of North Dakota, Plaintiff and Appellant, v. Timothy RAMBOUSEK, Defendant and Appellee.

Cr. No. 1017.

Supreme Court of North Dakota.

Nov. 28, 1984.

Ronald L. Hilden, Asst. State's Atty., Dickinson, for plaintiff and appellant; argued by Ronald L. Hilden, Asst. State's Atty., Dickinson.

Thomas D. Ewing, Dickinson, for defendant and appellee; argued by Thomas D. Ewing, Dickinson.

ERICKSTAD, Chief Justice.

The State appeals from an order of the County Court of Stark County suppressing the results of a Breathalyzer test administered to Timothy Rambousek. Rambousek has filed a motion with this Court to dismiss the State's appeal. We deny the motion and reverse the county court's suppression order.

On January 1, 1984, at about 1:40 a.m., Rambousek was stopped by North Dakota Highway Patrolman Steven Kirchoffner while driving on a highway. Officer Kirchoffner administered certain field sobriety tests after which he placed Rambousek under arrest for driving while under the influence of intoxicating liquor. Rambousek agreed to submit to a Breathalyzer test which was later administered by Officer Kirchoffner.

Rambousek filed a motion to suppress the results of the Breathalyzer test on grounds the arresting officer failed to advise him that he had the opportunity to have a qualified person of his own choosing administer an additional chemical test. Section 39-20-02, N.D.C.C., permits a person tested under the direction of a law enforcement officer to have an additional test at his own expense:

"Persons qualified to administer test and opportunity for additional test.... The person tested may have a physician, or a qualified technician, chemist, registered nurse, or other qualified person of his own choosing administer a chemical test or tests in addition to any administered at the direction of a law enforcement officer with all costs of an additional test or tests to be the sole responsibility of the person charged. The failure or inability to obtain an additional test by a person shall not preclude the admission of the test or tests taken at the direction of law enforcement officer."

At a hearing on the motion, the court elicited the following testimony from Officer Kirchoffner concerning the circumstances involved in this case:

"THE COURT: ... Officer Kirchoffner, did you in fact advise Mr. Rambousek of his standard Miranda advisement?

"A. No, I did not, your Honor.

"Q. ... [D]id Mr. Rambousek at any time have the benefit of counsel, from the time that you placed him under arrest until he was placed in incarceration?

"A. Do you mean was he available to call someone?

"Q. Yes. Did he have opportunity to consult with counsel either in person or by phone?

"A. Yes, he had the availability.

"Q. Did you inform him of that?

"A. No, I did not.

"Q. Subsequent to his arrest, was Mr. Rambousek incarcerated then for detoxification?

"A. After the test failed, your Honor, yes he was."

The court's order granting the motion reads in pertinent part as follows:

"I.

"That the Defendant, Timothy Rambousek, ... subsequent to said arrest, remained in the custody of the Stark County Sheriff and Law Enforcement Center, for a period of at least eight (8) hours, for the purposes of detoxification.

"II.

"That at no time during the course of the arrest of the Defendant, nor during his period of confinement, was the Defendant advised of his constitutional rights, nor was the Defendant advised of his statutory right to have a separate second independent evaluation of his blood alcohol content.

"III.

"That due to the Defendant's incarceration, and the absence of the Defendant's opportunity to consult with counsel, the Defendant, Timothy Rambousek, was denied any opportunity to be informed of his right to have a second independent evaluation of his blood alcohol content, said evidence relevant to the charge against the Defendant.

"Upon the foregoing Findings, IT IS THE ORDER OF THIS COURT that the results of the breathalyzer test to which the Defendant was subjected are herewith suppressed in their entirety ...."

The State argues that neither Section 39-20-02 nor due process requires that a person tested be informed of the opportunity to have an additional test or tests performed and, therefore, asserts the court erred in granting the motion.

I.

The first issue we must consider, however, is whether or not the State's appeal from the court's order suppressing evidence should be dismissed.

The State brought this appeal pursuant to Section 29-28-07(5), N.D.C.C., which provides that the State may appeal from an order suppressing evidence "when accompanied by a statement of the prosecuting attorney asserting that the deprivation of the use of the [suppressed evidence] ... has rendered the proof available to the state with respect to the criminal charge filed with the court, (1) insufficient as a matter of law, or (2) so weak in its entirety that any possibility of prosecuting such charge to a conviction has been effectively destroyed." In State v. Dilger, 322 N.W.2d 461, 463 (N.D.1982), we held that in addition to filing the statement prescribed by Section 29-28-07(5), that the State is required to explain why the court's order suppressing evidence rendered the available proof insufficient as a matter of law or effectively destroyed any possibility of prosecuting the criminal charge to a conviction. We said, "The prosecuting attorney's explanation should be included either with the statement filed pursuant to Sec. 29-28-07(5), N.D.C.C., or in the State's brief filed for the purposes of the appeal."

In this case the prosecuting attorney filed a statement reciting only the statutory language; however, we are provided an explanation of the reasons for the appeal in the State's reply brief. The reply brief was served and filed by the State in response to an argument made by Rambousek in his brief and by motion that this appeal should be dismissed because the State had failed to comply with the requirements of State v. Dilger, supra. Rambousek asserted during oral argument that the explanation by the State of the reasons for its appeal, contained not in the State's brief but in a reply brief filed only after the defendant had raised the issue of the sufficiency of the prosecutor's statement, does not comply with Section 29-28-07(5), and Dilger, supra. We disagree.

Our purpose in requiring prosecuting attorneys to support by explanation their statements filed pursuant to Section 29-28-07(5) and subjecting the statements and explanations to review is to compel prosecuting attorneys to evaluate carefully the actual effect of the suppression order to ensure that the legislative intent in prescribing a limited right to appeal is carried out. State v. Anderson, 353 N.W.2d 324, 326 (N.D.1984); Dilger, supra.

In State v. Kisse, 351 N.W.2d 97, 100 (N.D.1984), we said:

"The prosecuting attorney thus may comply with Section 29-28-07(5) either by filing a statement that explains the reasons for the appeal or by filing a terse statement and providing the explanation in a brief. Both procedures satisfy the requirements of Section 29-28-07(5) ...." [Emphasis added.]

We believe that the legislative intent in prescribing a limited right to appeal would not be circumvented by allowing the State to present the explanation required by this Court in a reply brief. The prosecuting attorney in this case has been compelled to evaluate carefully the actual effect of the suppression order with respect to the possibility of prosecuting the charge against Rambousek to a conviction. To dismiss this appeal solely on grounds the State's explanation is contained in a reply brief and not in the prosecutor's statement or its initial brief would not safeguard any constitutional right or principle, but rather would ignore the interest of the public in the prosecution of criminal cases in general and driving while under the influence of intoxicating liquor cases in particular.

In his brief Rambousek has challenged the State's assertion that the court's granting of the motion to suppress has rendered the remaining evidence insufficient as a matter of law or has effectively destroyed the State's case. He argues the State has available to it the eyewitness testimony of the arresting officer and the jailer.

It is the State's burden to establish by its explanation that further prosecution without the suppressed evidence would be futile and not merely more difficult. State v. Anderson, supra; State v. Gawryluk, 351 N.W.2d 94, 96 (N.D.1984); State v. Frank, 350 N.W.2d 596, 598 (N.D.1984). The prosecutor's explanation in this case reads as follows:

"The officer involved in the arrest will testify that the Defendant crossed the centerline causing the officer to drive on the road shoulder in order to avoid a collision. The officer stopped the Defendant who had a 'moderate' odor of alcohol. He was 'hesitant' on the finger-to-nose test but completed it successfully; he was 'unsure' on the heal-to-toe test but completed it successfully; he counted from 20 to 0 but did so 'slowly,' he had 'difficulty' finding his driver's license but produced it; his appearance was 'orderly' and his demeanor was 'polite' and 'co-operative;' his ability to understand instructions was 'good.' Defendant testified at his administrative hearing that he and his girlfriend had been to a New Year's Eve party where he had consumed two or three drinks of Windsor and coke and that he had difficulty remaining awake as well he might at 1:40 a.m.

"If the State is prevented from introducing evidence of a blood/alcohol concentration in excess of .10% by weight (.13% here), there is virtually no likelihood whatsoever that a Stark County jury will convict. Moreover, there may be evidence presented by Defendant of the existence of a brain tumor to dispel what little there is to be concluded from the officer's observations and the physical tests.... If I am prevented by ...