State v. Salhus
| Decision Date | 26 June 1974 |
| Docket Number | No. 467,467 |
| Citation | 220 N.W.2d 852 |
| Parties | STATE of North Dakota, Plaintiff and Appellee, v. Raymond SALHUS, Defendant and Appellant. Crim. |
| Court | North Dakota Supreme Court |
Syllabus by the Court
1. Term 'reasonable cause' used in N.D.C.C. 29--06--15, subd. 6, which provides for warrantless arrest on a charge of driving while under the influence of alcoholic beverages, is synonymous with the term 'probable cause.'
2. Observations of a defendant's actions after time of arrest may not be used to establish probable cause for arrest.
3. Peace officer's observations that defendant failed to stop in response to normal visual signals, staggered after alighting from vehicle, steadied himself against his vehicle, and had difficulty extracting his driver's license from his wallet constituted probable cause for arrest on a charge of driving a motor vehicle while under the influence of intoxicating liquor.
4. If driver, because of ingestion of intoxicants, does not possess the clearness of intellect and control of himself that he otherwise would have, he is driving while under the influence of intoxicating liquor and the State is not required to show that he was driving in an unsafe manner, in order to sustain a conviction for driving while under the influence of an intoxicating liquor.
5. State Toxicologist, in carrying out his responsibilities under N.D.C.C. 39--20--07, is not subject to the provisions of the North Dakota Administrative Agencies Practice Act.
6. A showing that a Breathalyzer operator was certified by the State Toxicologist and that the Breathalyzer device used or the method used was approved by the State Toxicologist is a statutory prerequisite to admissibility of the results of a Breathalyzer test in a criminal action.
7. A showing that a Breathalyzer test was 'fairly administered,' as required by N.D.C.C. 39--20--07, is foundational for admissibility of results and full proof that the device was in proper working order, that the chemicals used were proper and properly compounded, that the operator was qualified, and that the test was given correctly are required in order to show fair administration of test.
8. Peace officer's opinion that defendant was under the influence of intoxicating liquor, which, on the record, was grounded solely upon the odor of defendant's breath, is insufficient to sustain a conviction for driving while under the influence of intoxicating liquor.
Thomas F. Kelsch, State's Atty. for Burleigh County, Bismarck, for plaintiff and appellee.
Lundberg & Nodland, Bismarck, for defendant and appellant.
Defendant appeals from a conviction in the Burleigh County court of increased jurisdiction for driving a motor vehicle while under the influence of an intoxicating beverage.
The facts are as follows:
--At about 12:20 a.m. on April 27, 1973, defendant's pickup truck was stopped by Officer Schultz of the North Dakota Highway Patrol because the truck had no functioning tail lights.
--When the defendant got out of his truck to look at the tail lights he staggered and put his hand on the side of the truck. When the officer asked the defendant for his driver's license, defendant went through his billfold but went past his driver's license twice before the officer assisted him by pointing out the driver's license.
--The officer then informed the defendant that he was aware that the defendant had been drinking, and asked the defendant if he would perform a few tests. Defendant agreed and performed certain items of a field sobriety test, the results of which are not indicated in the record.
--The officer then placed defendant under arrest for driving while under the influence of intoxicating liquor. Officer Herbert Elter arrived at the scene shortly thereafter and took the defendant to the Bismarck police station where Elter proceeded to perform a breath-alcohol test on defendant, using a Breathalyzer testing device.
Defendant presents three issues on appeal:
1. Was there probable cause to arrest?
2. Can a conviction for driving while under the influence of intoxicating liquor be upheld where there is no evidence of driving impairment?
3. Was there foundation for the admission of any blood-alcohol test and of opinion evidence?
We shall first take up the issue as to probable cause for arrest.
N.D.C.C. 29--06--15 provides, in pertinent part:
'A peace officer, without a warrant, may arrest a person:
6. On a charge, made upon reasonable cause, of driving . . . a vehicle while under the influence of alcoholic beverages.'
The term 'reasonable cause,' used in N.D.C.C. 29--06--15, is synonymous with the term 'probable cause.' See, e.g., Smestad v. Ellingson, 191 N.W.2d 799 (N.D.1971) (terms used interchangeably). See also Fisher, Laws of Arrest (1967), at p. 150.
In Smestad v. Ellingson, Supra, we found probable cause for an arrest for driving while under the influence of intoxicating liquor when the testimony of the arresting officer who arrived at the scene of an accident was that the 'petitioner's speech was slurred, that he walked in an unsteady manner, that he had difficulty in responding to the officer's questions, that his eyes were glazed and bloodshot and that he had a strong odor of alcohol about him.'
The State seems to contend that probable cause for arrest may be established by showing what happened after the time of the arrest. This argument is untenable.
In State v. Chaussee, 138 N.W.2d 788, 792 (1965), we quoted the Supreme Court of the United States as follows:
'In dealing with probable cause, however, as the very name implies, we deal with probabilities. These are not technical; they are the factual and practical considerations of everyday life on which reasonable and prudent men, not legal technicians, act. The standard of proof is accordingly correlative to what must be proved.
'. . . Probable cause exists where 'the facts and circumstances within their (the officers') knowledge and of which they had reasonably trustworthy information (are) sufficient in themselves to warrant a man of reasonable caution in the belief that' an offense has been or is being committed. Carroll v. United States, 267 U.S. 132, 162, 45 S.Ct. 280, 288, 69 L.Ed. 543, 39 A.L.R. 790.
(Quoted from Brinegar v. United States, 338 U.S. 160, 175--176, 69 S.Ct. 1302, 1310, 1311, 93 L.Ed. 1879 (1949).)
In the instant case, the arresting officer had observed that the defendant--
1. Failed to stop when the arresting officer was following him with his red light blinking;
2. Staggered when he got out of the truck;
3. Steadied himself by putting his hand on the truck after he got out; and
4. Had difficulty finding his driver's license.
We hold that these facts taken together constitute probable cause for arrest on a charge of driving while under the influence of intoxicating liquor since these "facts and circumstances . . . (are) sufficient in themselves to warrant a man of reasonable caution in the belief that' an offense has been or is being committed.' Brinegar v. United States, Supra.
The defendant's second argument is that a conviction for driving while under the influence of intoxicating liquor cannot be upheld where there is no evidence of driving impairment. He relies on State v. Hanson, 73 N.W.2d 135 (N.D.1955), in support of that proposition.
In that case, which also involved a defendant charged with driving while under the influence of intoxicating liquor, we approved the following jury instruction:
'It depends upon how it affects his mental processes and bodily functions.' 73 N.W.2d 135, at 139.
Defendant argues that it is the effect and not the amount of intoxicating liquor consumed that determines whether a person is 'under the influence' to a degree affecting his ability to operate a motor vehicle, within the meaning of the statute. He seems to put forth the proposition that since the sole testimony shows that he was driving in a normal manner, the prosecution is unable to show that he was 'under the influence' of intoxicating liquor. Defendant apparently has overlooked our definition of the phrase 'under the influence of intoxicating liquor' as set forth in State v. Hanson, Supra:
'The expression 'under the influence of intoxicating liquor' simply means having drunk enough to disturb the action of the physical or mental faculties so that they are no longer in their natural or normal condition; that therefore, when a person is so affected by intoxicating liquor as not to possess that clearness of intellect and control of himself that he would otherwise have, he is 'under the influence of intoxicating liquor' and this is the common and well-known understanding of the expression.' 73 N.W.2d 135, at 139, 140.
The same definition was applied in State v. Glavkee, 138 N.W.2d 663 (...
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