State v. Smith
| Decision Date | 17 July 2014 |
| Docket Number | No. 20130398.,20130398. |
| Court | North Dakota Supreme Court |
| Parties | STATE of North Dakota, Plaintiff and Appellee v. Joseph SMITH, Defendant and Appellant. |
OPINION TEXT STARTS HERE
Christine H. McAllister, Burleigh County Assistant State's Attorney, Bismarck, ND, for plaintiff and appellee.
Danny L. Herbel, The Regency Business Center, Bismarck, ND, for defendant and appellant.
[¶ 1] Joseph Smith appeals from a district court criminal judgment and conviction entered on a conditional plea of guilty for driving under the influence of an intoxicating liquor (“DUI”), in violation of N.D.C.C. § 39–08–01, a class B misdemeanor. Smith argues the district court erred in denying his motion to suppress evidence that he claims was obtained in violation of Missouri v. McNeely, ––– U.S. ––––, 133 S.Ct. 1552, 185 L.Ed.2d 696 (2013), and his constitutional rights under the Fourth Amendment to the United States Constitution, and Article I, Section 8 of the North Dakota Constitution. Smith consented to take the chemical breath test given by the law enforcement officer, therefore, Smith's constitutional rights were not violated as a matter of law by North Dakota's implied consent law. We affirm, concluding the district court did not err in denying Smith's motion to suppress.
[¶ 2] On July 21, 2013, a Burleigh County deputy arrested Smith for DUI. Prior to arrest, the deputy observed Smith swerve. Smith subsequently parked his car in a parking lot and the deputy approached Smith. Smith admitted to having too much to drink. Smith indicated he had consumed ten drinks prior to driving but believed he was still able to drive. Smith consented to taking field sobriety tests but admitted he would not pass. Smith passed the one legged stand test but failed the horizontal gaze nystagmus and walk and turn tests. The deputy provided Smith with the North Dakota implied consent law advisory, stating:
As a condition of operating a motor vehicle on a highway or a public or private area to which the public has a right of access to, you have consented to taking a test to determine whether you are under the influence of alcohol or drugs. I must inform you that: (a) North Dakota law requires you to take a breath screening test to determine if you are under the influence of alcohol; (b) North Dakota law requires you to submit to a chemical test to determine whether you are under the influence of alcohol or drugs. Refusal to take this test as directed by a law enforcement officer is a crime punishable in the same manner as DUI and includes being arrested. I must also inform you that refusal to take the test as requested by a law enforcement officer may result in a revocation of your driver's license for up to a minimum of one hundred and eighty days and potentially up to three years. Do you understand these consequences?
Smith indicated he understood the consequences and consented to the preliminary breath test. Smith's preliminary breath test result was 0.156 percent alcohol concentration, and he was placed under arrest. The deputy read Smith his Miranda rights and, for the second time, provided Smith with the North Dakota implied consent law advisory. Again, Smith indicated he understood the consequences and consented to the Intoxilyzer 8000 test. Smith was transported to the Burleigh County Detention Center, where an Intoxilyzer 8000 test was administered. Smith's Intoxilyzer 8000 test result was 0.152 percent alcohol concentration.
[¶ 3] In October 2013, Smith moved to suppress evidence, seeking suppression of the Intoxilyzer 8000 test results. Smith claimed the Intoxilyzer 8000 test result was obtained without a warrant and without an exception to the warrant requirement, in violation of U.S. Const. amend. IV and N.D. Const. art. I, § 8. The State opposed the motion to suppress, and Smith replied. In November 2013, the district court denied Smith's motion to suppress. In December 2013, the district court accepted Smith's conditional plea of guilty for DUI, and Smith appealed.
[¶ 4] The applicable standard of review of a district court's decision to grant or deny a motion to suppress evidence is well established.
State v. Zink, 2010 ND 230, ¶ 5, 791 N.W.2d 161 (quoting State v. Mohl, 2010 ND 120, ¶ 5, 784 N.W.2d 128). “Whether a finding of fact meets a legal standard is a question of law,” which is fully reviewable on appeal. State v. Mitzel, 2004 ND 157, ¶ 10, 685 N.W.2d 120. “The existence of consent is a question of fact to be determined from the totality of the circumstances.” Id. at ¶ 13. Whether consent is voluntary is generally decided from the totality of the circumstances. McCoy v. N.D. Dep't of Transp., 2014 ND 119, ¶ 14, 848 N.W.2d 659. “Our standard of review for a claimed violation of a constitutional right is de novo.” Id. at ¶ 8.
[¶ 5] Smith argues the district court erred in denying his motion to suppress evidence. According to Smith, he did not voluntarily consent to the Intoxilyzer 8000 test and, therefore, the warrantless test was performed without any exception to the warrant requirement. Smith, therefore, contends the district court's judgment is contrary to the United States Supreme Court's decision in McNeely, 133 S.Ct. 1552, and violated his constitutional rights under U.S. Const. amend. IV and N.D. Const. art. I, § 8.
[¶ 6] This Court's “review is limited to issues raised before the district court.” Zink, 2010 ND 230, ¶ 6, 791 N.W.2d 161. In his motion to suppress, Smith claims his submission to the Intoxilyzer 8000 test was the product of coercion and, therefore, not voluntary. Smith claims the coercion occurred when the deputy advised him that the implied consent law makes refusal to take a breath screening or chemical test a crime that may result in a revocation of his driving privileges. Smith concedes that the sole issue on appeal is “whether the State met its burden of proving that, under the totality of circumstances, Smith voluntarily consented to the warrantless Intoxilyzer breath test.” Therefore, we limit our review of the district court's denial of Smith's motion to suppress to whether Smith's consent to the Intoxilyzer 8000 test was voluntary.
[¶ 7] In McCoy, this Court recently explained:
Unreasonable searches and seizures are prohibited under U.S. Const. amend. IV and N.D. Const. art. I, § 8. It is well-settled that administration of a breath test to determine alcohol consumption is a search. Warrantless searches are unreasonable unless they fall within one of the recognized exceptions to the warrant requirement. Consent is one exception to the warrant requirement. To be effective, consent must be voluntarily given under the totality of the circumstances and must not be coerced by explicit or implicit means or by implied threat or covert force.
2014 ND 119, ¶ 10, 848 N.W.2d 659 (citations omitted) (quotation marks omitted). “It is the State's burden to show that a warrantless search falls within an exception to the warrant requirement.” Mitzel, 2004 ND 157, ¶ 12, 685 N.W.2d 120.
[¶ 8] Driving is a privilege, not a constitutional right and, therefore, subject to reasonable control of the State under its police power. McCoy, 2014 ND 119, ¶ 26, 848 N.W.2d 659 (citing State v. Stuart, 544 N.W.2d 158, 163 (N.D.1996); N.D. Dep't of Transp. v. DuPaul, 487 N.W.2d 593, 598 (N.D.1992); State v. Mische, 448 N.W.2d 412, 413 (N.D.1989); State v. Larson, 419 N.W.2d 897, 898 (N.D.1988); State v. Kouba, 319 N.W.2d 161, 163 (N.D.1982)). North Dakota, like other states, has continued to increase penalties and enact tougher laws in response to the carnage on our nation's highways. McCoy, 2014 ND 119, ¶ 26, 848 N.W.2d 659.
[¶ 9] North Dakota's implied consent law provides:
Any individual 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, or urine for the purpose of determining the alcohol concentration ... in the individual's blood, breath, or urine.
N.D.C.C. § 39–20–01(1). During the 2013 legislative session, the North Dakota Legislative Assembly increased the penalties in regard to DUI, making refusal to take a test a crime. Section 39–20–01(3), N.D.C.C., provides that law enforcement officers:
[S]hall inform the individual charged that North Dakota law requires the individual to take the test to determine whether the individual is under the influence of alcohol ...; that refusal to take the test directed by the law enforcement officer is a crime punishable in the same manner as driving under the influence; and that refusal of the individual to submit to the test directed by the law enforcement officer may result in a revocation for a minimum of one hundred eighty days and up to three years of the individual's driving privileges.
There has been no change, however in a person's statutory right to refuse to take the test. “If a person refuses to submit to testing under section 39–20–01 ... none may be given....” N.D.C.C. § 39–20–04. The North Dakota Legislative Assembly created a statutory right to refuse, but that refusal comes with consequences. “[A] driver may not refuse testing to avoid the potential consequences of test submission and to avoid the penalties of refusal by remaining ambivalent.” McCoy, 2014 ND 119, ¶ 12, 848 N.W.2d 659. The implied consent law “does not apply when a person voluntarily consents to chemical testing.” Id. at ¶ 13.
[¶ 10] In State v. Murphy, we examined ...
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