State v. Taylor

• Decision Date: 05 June 2018
• Docket Number: No. 20170321,20170321
• Parties: STATE of North Dakota, Plaintiff and Appellee v. Joshua Ryan TAYLOR, Defendant and Appellant
• Court: North Dakota Supreme Court

911 N.W.2d 905

STATE of North Dakota, Plaintiff and Appellee

v.Joshua Ryan TAYLOR, Defendant and Appellant

No. 20170321

Supreme Court of North Dakota.

Filed June 5, 2018

Casey W. Moen, Assistant State’s Attorney, Wahpeton, North Dakota, for plaintiff and appellee.

Joshua R. Taylor, self-represented, Wahpeton, North Dakota, defendant and appellant.

VandeWalle, Chief Justice.

[¶ 1] Joshua Taylor appealed from a criminal judgment entered after a jury found him guilty of refusing to submit to a chemical test for intoxication. Taylor argues the district court erred in denying his requested jury instruction and his motion to dismiss. We affirm.

I

[¶ 2] According to the arresting officer, in the early morning hours of February 16, 2017, he observed Taylor driving a vehicle that failed to stop at a stop sign. The officer testified he initiated a traffic stop that resulted in Taylor’s refusal to submit to an onsite preliminary breath test and in a subsequent arrest and refusal to submit to an Intoxilyzer test at a law enforcement center. The State charged Taylor with refusal to submit to a chemical test under "NDCC/Ord. 39–08–01(E)."

[¶ 3] Throughout these proceedings, Taylor has represented himself and has maintained that a video from the arresting officer’s patrol vehicle would establish he stopped at the stop sign. This record does not include a written request for discovery by Taylor, but in his appellate brief he claims he requested the audio and video recordings from the state’s attorney’s office and was ultimately told the materials were unrecoverable. In response to a district court inquiry about the status of discovery at a pretrial dispositional conference, Taylor indicated "[i]t sounds like what I was waiting on is unrecoverable," and he moved to dismiss the charge for "lack of evidence." He argued the arresting officer did not have a valid reason for the initial traffic stop and, as a result, the officer’s subsequent requests for an onsite screening test and a chemical test were invalid.

[¶ 4] The State responded that Taylor’s argument referred to the fact that a video camera in the officer’s patrol vehicle "wasn’t operational" at the time of the stop, but the officer’s testimony at trial would be sufficient evidence of driving under the influence and the basis for the stop. The State argued that "just because the video camera wasn’t operational doesn’t mean that the officer’s word and his testimony isn’t evidence." The district court denied Taylor’s motion to dismiss.

[¶ 5] Taylor thereafter requested a jury instruction under N.D.C.C. § 39–20–14(1), which authorizes a law enforcement officer to request an onsite screening test if the officer "has reason to believe that the individual committed a moving traffic violation ... and in conjunction with the violation ... the officer has, through the officer’s observations, formulated an opinion that the individual’s body contains alcohol." Immediately before the jury trial, the district court denied Taylor’s requested jury instruction after an extensive colloquy:

MR. TAYLOR: Part of my purpose for 39–20–14 is specifically the requirement by the state for a moving violation for request of a breathalyzer or chemical test.

COURT: Ms. Kummer.

MS. KUMMER [Assistant State’s Attorney]: ... Mr. Taylor is charged with 39–08–01(e)(2) and that’s part of North Dakota law provides that if he’s found to have refused a chemical test after driving or being in actual physical control of a vehicle on a road or highway or a public right of access he must submit to a chemical test.

As the Court indicated, 39–20–14 is regarding the PBT [Preliminary Breath Test]. While he did refuse that as well, I think the State is intending to move forward with the prosecution of the crime of refusing it once he was actually arrested and transported back to the jail which would require only a showing that he operated a motor vehicle in Richland County. He failed to stop at a stop sign so I also don’t know what the argument is going to be about whether there was a moving violation or not. Obviously, there was a violation of state law there as well. But I think that the proper jury instruction is what the State has actually charged him with and that is operating a motor vehicle on a public way and refusing to submit to a chemical test. I think that the Court’s essential elements are correct.

MR. TAYLOR: To my understanding, your Honor, 39–20–14 doesn’t cover a charge itself—it covers screening test. The point of 39–20–14(1) is that they have to have a moving violation to request the breathalyzer. I couldn’t have ended up in Richland County Sheriff’s Department for the chemical test during booking without an arrest. The arrest is for refusal on site chemical test. 39–20–14 requires a moving violation.

COURT: Well, your arrest, I assume, for suspected DUI. Was there actually an arrest Ms. Kummer?

MS. KUMMER: Right. Yep, and it was based on all the officer’s observations, and including refusing the PBT.

MR. TAYLOR: That is the actual charge. Refusal to submit to an on site chemical test.

COURT: Well there’s two and they often get interchanged and confused. There’s a preliminary breath test—the PBT.... And that’s one to determine if further testing is warranted. That’s the on-site screening test out in the field. And if you flunk that then usually what they do is they arrest you and then they bring you to ... and that one’s not admissible in court. So what they do is bring you, because it’s just a screening test, so then they bring you to the Law Enforcement Center or if you consent you can go to the hospital and get a blood draw or you come here and you get a UA or do the Intoxilyzer.

MR. TAYLOR: But seeing as there wasn’t a chemical test on site the arrest is for refusal on site. There is no other way around that if I don’t refuse on site I don’t get arrested for refusal. Under the law I’m considered to be under arrest as soon as an officer will not let me leave his presence. As soon as I am detained and not free to move.

COURT: Yeah. I don’t know when the arrest took place in this. This is ... I know nothing about this case other than what minimal things have been filed.

MS. KUMMER: Well, I guess what does it matter.

MR. TAYLOR: Because the key element of 39–20–14 is requiring a moving violation.

COURT: But that’s not what you are charged with violating.

MS. KUMMER: Right.

COURT: The citation is 39–08–01, refusing the chemical test once you got to the law enforcement center.

MR. TAYLOR: But I was arrested before I was brought to the Law Enforcement Center.

COURT: On suspected DUI.

MR. TAYLOR: For refusal. That is what I was told by the officer on site. You are under arrest for refusal to submit.

COURT: So based on what comes out here in court there is going to be final instructions, and I may modify the instructions based on that, but what I know at this time and I have no evidence all I have is the filings in this case, the citation clearly says 39–08–01, which is before you there and that talks about blood, breath, and urine. You’re requesting a PBT instruction. All’s I know about it is what you are telling me here. There is nothing in the file other than your requested jury instruction. So at this time I’m going to deny your request. The evidence that comes out at trial may change that. I may have to modify the instruction but I’m going with what the citation charged and what Ms. Kummer intends to try and prove up here today.

MS. KUMMER: And I guess I still don’t understand what it matters. I mean he’s charged with ...

COURT: ... well, as I understand it, Mr. Taylor’s, obviously whether or not there was a moving violation is in question. Mr. Taylor’s going to refute that and so if there was no moving violation he’s going to argue that the stop was improper and the test should not have been administered or requested.

MS. KUMMER: That seems like not a question for the jury. I mean, that seems like something that the Court should decide as a matter of law prior to.

MR. TAYLOR: Lacking burden of proof. There is no proof I ran the stop sign. I refute that I ran the stop sign and have a witness that was in the vehicle.

COURT: Well, that would have been more appropriate for a motion to suppress.

MS. KUMMER: Right.

COURT: So we wouldn’t get that far, but we’re here today, so again I’m going to deny it and going with the instruction as is. Anything else on the instructions?

MS. KUMMER: Not that I saw.

MR. TAYLOR: No your Honor.

[¶ 6] The district court thereafter provided the jury with preliminary instructions, including an instruction on the essential elements of the charge of refusing a chemical test:

On February 16, 2017, in Richland County, North Dakota, the Defendant, Joshua Ryan Taylor, drove a vehicle on a highway or upon public or private areas to which the public has a right of access for vehicular use; and the Defendant, Joshua Ryan Taylor, refused to submit to a chemical test, or tests, of his blood, breath, or urine to determine the alcohol concentration or presence of other drugs, or combination of alcohol and drugs, in his blood, breath, or urine, at the direction of a law enforcement officer.

[¶ 7] At trial, the arresting officer testified about the initial traffic stop and Taylor’s refusal to submit to an onsite preliminary breath test and to a subsequent Intoxilyzer test. After the State rested, Taylor moved to "suppress anything else about the stop sign." The district court stated a motion to suppress was inappropriate at that stage of the proceeding, but treated his request as a motion for acquittal under N.D.R.Crim.P. 29 and denied the motion. Taylor did not testify on his behalf but called a passenger in his vehicle and the arresting officer to testify about the events leading up to the initial traffic stop. The court thereafter denied Taylor’s motion for "summary dismissal," stating the "case is about a refusal on your part and there is nothing in the record to ... contradict ... [the arresting officer’s] testimony that h...