State v. Simon, Cr. N

• Decision Date: 18 January 1994
• Docket Number: Cr. N
• Citation: 510 N.W.2d 635
• Parties: STATE of North Dakota, Plaintiff and Appellant, v. Norbert SIMON, Defendant and Appellee. o. 930294.
• Court: North Dakota Supreme Court

Page 635

510 N.W.2d 635

STATE of North Dakota, Plaintiff and Appellant, v. Norbert SIMON, Defendant and Appellee.

Cr. No. 930294.

Supreme Court of North Dakota.

Jan. 18, 1994.

Rick Lee Volk (argued), Asst. State's Atty., Bismarck, for plaintiff and appellant.

Chad Nodland (argued), of Nodland & Dickson, Bismarck, for defendant and appellee.

NEUMANN, Justice.

The State appeals from an order suppressing the results of a blood alcohol test. We dismiss the appeal.

On March 5, 1993, Norbert Simon was arrested and charged with driving while under the influence of intoxicating liquor in violation of Section 39-08-01, N.D.C.C. James Hidding of the Office of the State Toxicologist performed a chemical analysis of the concentration of alcohol in Simon's blood. The certified results of Hidding's analysis indicated that Simon's blood had an alcohol concentration of .17 percent by weight.

A jury trial was scheduled for September 2, 1993. Shortly before Simon's scheduled trial, Hidding left his job with the State Toxicologist. According to the State, Hidding testified at another trial in North Dakota on August 19, 1993, and "commented that he would be unwilling to return to North Dakota to testify in any D.U.I. trials as he is starting a new job and will be on a six-month probationary term during which time he did not want to jeopardize his employment. Mr. Hidding would not inform the State where he was to begin this new employment."

On August 18, 1993, the State notified counsel for Simon that the State "may not be subpoenaing" Hidding for Simon's trial and suggested that Simon should subpoena Hidding to ensure his presence at trial. On August 24, 1993, Simon advised the State that he had tried to locate Hidding to subpoena him for trial and had been "informed that Mr. Hidding is somewhere in Indiana, but that no forwarding address has been left at the State Toxicologist's Office." Simon indicated that if the matter could not be resolved, he would "apply to the court for expenses to locate and return Mr. Hidding" for trial. The State responded that if Simon desired to have Hidding at the trial, he could "apply to the Court for the expenses."

Simon thereafter moved to dismiss the prosecution, to suppress the results of the blood test, or, alternatively, to obtain a continuance to locate Hidding and subpoena him for trial. The court granted Simon's motion to suppress the results of the blood test, concluding Simon was deprived of the opportunity to cross-examine the expert who conducted the chemical test. The State appealed.

Simon moved to dismiss the State's appeal, contending it is not authorized by statute. The State responded that its appeal is authorized by Section 29-28-07(5), N.D.C.C., which provides:

"An appeal may be taken by the state from:

* * * * * *

"5. An order granting the return of property or suppressing evidence, or suppressing a confession or admission, when accompanied by a statement of the prosecuting attorney asserting that the appeal is not taken for purpose of delay and that the evidence is a substantial proof of a fact material in the proceeding. The statement must be filed with the clerk of district court and a copy must accompany the notice of appeal."

The State's right to appeal in a criminal action is governed by Section 29-28-07, N.D.C.C., and is a jurisdictional matter. E.g., State v. Counts, 472 N.W.2d 756 (N.D.1991); State v. Miller, 391 N.W.2d 151 (N.D.1986). We must dismiss an appeal by the State if it does not meet the requirements of Section 29-28-07, N.D.C.C. See State v. Klocke, 419 N.W.2d 918 (N.D.1988).

In State v. Miller, supra, 391 N.W.2d at 152, 155, we construed Section 29-28-07(5), N.D.C.C., in the context of dismissing an appeal by the State from an order suppressing the use of certain evidence as a discovery sanction:

"Although it is possible to construe 'suppressing' as a generic term meaning any form of exclusion of evidence (see Section 1-02-02, N.D.C.C.), the use of the term in context of the Rules of Criminal Procedure leads us to the conclusion that the words '[a]n order ... suppressing evidence' relate to a decision by a lower court granting a motion to suppress evidence pursuant to Rule 12, N.D.R.Crim.P....

* * * * * *

"[W]e hold that appeals by the State pursuant to Section...