State v. Salter, No. 20080080.

• Court: North Dakota Supreme Court
• Writing for the Court: Kapsner
• Citation: 2008 ND 230,758 N.W.2d 702
• Decision Date: 16 December 2008
• Docket Number: No. 20080080.
• Parties: STATE of North Dakota, Plaintiff and Appellee v. Patrick SALTER, Defendant and Appellant.

758 N.W.2d 702 2008 ND 230 STATE of North Dakota, Plaintiff and Appellee
v.
Patrick SALTER, Defendant and Appellant. No. 20080080. Supreme Court of North Dakota. December 16, 2008.

[758 N.W.2d 703]

Tyrone Jay Turner, Assistant State's Attorney, Bismarck, N.D., for plaintiff and appellee.

Danny Lee Herbel, The Regency Business Center, Bismarck, N.D., for defendant and appellant.

KAPSNER, Justice.

[¶ 1] Patrick Salter appeals from his conviction for driving under the influence of an intoxicating liquor in violation of N.D.C.C. § 39-08-01, entered upon a conditional plea of guilty after the district court denied his motion to suppress. Salter argues the district court erred in denying his motion to suppress because he did not voluntarily consent to blood-alcohol testing. We affirm, concluding Salter's consent was implied and he did not affirmatively withdraw his consent.

I

[¶ 2] On October 14, 2007, North Dakota Highway Patrol Trooper Derek Arndt stopped Salter's vehicle. During the stop, Arndt questioned Salter about how much alcohol he had to drink that night and asked Salter to perform a few field sobriety tests. Salter failed these tests, and Arndt asked him to submit to a preliminary breath test. Arndt read the implied consent advisory to Salter, advising him that if he refused to submit to testing his driving privileges could be revoked for up to four years. Salter agreed to take the preliminary breath test, and the test was administered. Arndt arrested Salter for driving under the influence, and explained that he would be taking Salter to the hospital for a blood-alcohol test. Arndt informed Salter the implied consent they had discussed earlier also applied to the blood draw, and he testified Salter said, "yup, yes, go ahead, yup." A blood test was administered and the results showed Salter had a blood alcohol concentration level of .15% by weight.

[¶ 3] On December 26, 2007, Salter moved to suppress evidence arguing the blood test results should be suppressed because the test was performed without his consent. After a hearing, the district court denied Salter's motion and made oral findings. The district court found the statutory implied consent provisions had been complied with, Salter had been advised implied consent applied before the blood test was administered, and Salter indicated he understood. The court subsequently entered an order denying Salter's motion to suppress based on its findings during the hearing, and Salter conditionally pled guilty reserving the right to appeal the denial of his motion to suppress.

II

[¶ 4] Salter argues the district court erred in denying his motion to suppress

758 N.W.2d 704

the results of the blood test because he did not voluntarily consent to the test. Salter claims statutory implied consent does not apply because Arndt did not read the mandatory implied consent advisory a second time before the blood test, he did not understand what Arndt meant when he said implied consent still applied, and he did not know he could refuse to take the test. He contends Arndt was required to ask him to consent to a blood-alcohol test, he did not give actual consent to the test, and he felt compelled to take the test.

[¶ 5] When we review a district court's decision on a motion to suppress, our standard of review is well-established:

[T]his Court defers to the district court's findings of fact and resolves conflicts in testimony in favor of affirmance. This Court will affirm a district court decision regarding a motion to suppress if there is sufficient competent evidence fairly capable of supporting the district court's findings, and the decision is not contrary to the manifest weight of the evidence. Questions of law are...