State v. Von Ruden

• Decision Date: 31 July 2017
• Docket Number: No. 20170015,20170015
• Citation: 900 N.W.2d 58
• Parties: STATE of North Dakota, Plaintiff and Appellee v. Christian VON RUDEN, Defendant and Appellant
• Court: North Dakota Supreme Court

900 N.W.2d 58

STATE of North Dakota, Plaintiff and Appellee

v.Christian VON RUDEN, Defendant and Appellant

No. 20170015

Supreme Court of North Dakota.

Filed July 31, 2017

Jessica J. Binder, Assistant State's Attorney, Stanton, N.D., for plaintiff and appellee.

Danny L. Herbel, Bismarck, N.D., for defendant and appellant.

McEvers, Justice.

[¶1] Christian Von Ruden appeals a criminal judgment convicting him of driving under the influence after entering a conditional guilty plea. Von Ruden argues evidence of the breath test records and checklists should be excluded because Officer Newman did not administer the test sequences in accordance with the approved method, and Officer Newman deprived him of his limited statutory right to counsel. We conclude Officer Newman scrupulously followed the approved method in administering the second breath test sequence and Von Ruden was not denied his limited statutory right to counsel. We therefore affirm.

I

[¶2] On March 15, 2016, the State charged Von Ruden with driving a motor vehicle while under the influence of intoxicating liquor under N.D.C.C. § 39-08-01. Von Ruden moved to suppress evidence of the breath test records and checklists and requested an evidentiary hearing. Von Ruden argued Officer Newman did not follow the approved method in administering the breath tests.

[¶3] The parties subsequently waived an evidentiary hearing and agreed to have the district court rule based on a stipulated record. The court initially entered an order suppressing the evidence indicating the booking video from jail was not submitted by the State. The court relied only on evidence provided by Von Ruden. The court found there was no showing by the State that allowing Von Ruden to contact his attorney would have materially interfered with the test. The State moved for reconsideration arguing the booking video was already in evidence. In reconsidering, the court noted the following undisputed facts:

On March 15, 2016, at approximately 8:28 p.m. Beulah police officer Ben Newman made a traffic stop of Von Ruden's vehicle. Officer Newman read the implied consent advisory to Von Ruden and administered a preliminary breath test. Von Ruden was subsequently arrested for DUI and transported to the detention center in Stanton, ND. Von Ruden was again read the implied consent advisory. Although Officer Newman had to ask Von Ruden a number of times whether he would submit to a chemical test, Von Ruden eventually gave an affirmative reply.

The first test sequence was begun at 9:22 p.m. Von Ruden provided [a] deficient sample and Officer Newman decided to not give the second portion of the test. After halting the first test, Officer Newman began a second testing procedure at 9:41 p.m. In between the first and second blows on the second testing sequence, Von Ruden stated that he wanted his phone to call an attorney. Officer Newman told him that he could call his attorney after the test was completed. The test was completed and indicated that Von Ruden had a BAC of .198.

Based on these facts, the district court granted the State's request for reconsideration, reversed its prior decision, and denied Von Ruden's motion to suppress. Von Ruden subsequently entered a conditional guilty plea to the charge of driving a motor vehicle while under the influence of intoxicating liquor.

II

[¶4] Von Ruden argues Officer Newman did not administer either Intoxilyzer breath test sequence in accordance with the approved method. He argues by manually aborting the first test sequence after receiving a deficient sample, Officer Newman denied him the opportunity to provide a second sample during the first test sequence. Von Ruden also argues Officer Newman did not follow the approved method when he failed to wait twenty minutes in between the first and the second test sequences. Therefore, Von Ruden contends the results from both test sequences should be excluded from evidence.

[¶5] "When reviewing a district court's decision on a motion to suppress, this Court defers to the district court's findings of fact, and conflicts in testimony are resolved in favor of affirmance, as we recognize the district court is in a ‘superior position to assess credibility of witnesses and weigh the evidence.’ " City of Dickinson v. Schank , 2017 ND 81, ¶ 6, 892 N.W.2d 593 (quoting State v. Gasal , 2015 ND 43, ¶ 6, 859 N.W.2d 914 ). "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." Schank , 2017 ND 81, ¶ 6, 892 N.W.2d 593 (citing City of Devils Lake v. Grove , 2008 ND 155, ¶ 7, 755 N.W.2d 485 ).

[¶6] Section 39-20-07(5), N.D.C.C., governs the admissibility of an Intoxilyzer test, stating in pertinent part:

The results of the chemical analysis must be received in evidence when it is shown that the sample was properly obtained and the test was fairly administered, and if the test is shown to have been performed according to methods and with devices approved by the director of the state crime laboratory or the director's designee, and by an individual possessing a certificate of qualification to administer the test issued by the director of the state crime laboratory or the director's designee.

(Emphasis added.) The purpose of this section is to ease the requirements for the admissibility of the chemical test results while assuring the test, on which the results are based, is fairly administered. See City of Bismarck v. Bosch , 2005 ND 12, ¶ 6, 691 N.W.2d 260. This Court has said "fair administration" of an Intoxilyzer test may be established by proof that the approved method for conducting the test has been "scrupulously followed." See State v. Stroh , 2011 ND 139, ¶ 4, 800 N.W.2d 276 ; Steinmeyer v. Dep't of Transp. , 2009 ND 126, ¶ 9, 768 N.W.2d 491. "However, ‘scrupulous' compliance does not mean ‘hypertechnical’ compliance." Stroh , 2011 ND 139, ¶ 4, 800 N.W.2d 276.

A

[¶7] Von Ruden argues Officer Newman did not perform the first Intoxilyzer breath test sequence in accordance with the approved method by manually aborting the test after Von Ruden provided a deficient sample. The approved method states:

If any breath sample is determined to be deficient, meaning the subject did not provide a breath sample or did not provide an adequate breath sample, the instrument will print "*Subject Test" followed by "#.###*" with the highest alcohol concentration obtained during the test. The asterisk (*) cross-references a message printed below on the test record.

1. If any one of the two breath samples rendered by the subject is deficient or the subject does not provide one of the two samples, the single test obtained shall constitute a valid test and the three digits for that test will be reported as the breath alcohol concentration.

2. If both breath samples rendered by the subject are deficient, the test is still valid, but with deficient breath samples. The subject either refused or could not provide a sample. This is not an acceptable breath alcohol result.

a. If the operator can determine the deficient breath samples are not because the subject refused to provide samples, but are because of the inability of the subject to provide the samples, an alternative test for the subject needs to be obtained for evidentiary purposes.

Approved Method to Conduct Breath Tests with the Intoxilyzer 8000 , dated April 19, 2012.

[¶8] In support of his argument Von Ruden relies on this Court's decision in Keller v. N.D. Dep't of Transp. , 2015 ND 81, ¶ 11, 861 N.W.2d 768. In Keller , the district court affirmed a North Dakota Department of Transportation hearing officer's decision to suspend Keller's driving privileges for one year. Keller , 2015 ND 81, ¶ 1, 861 N.W.2d 768. After providing an adequate breath sample, the officer testified Keller either would not or could not provide a second adequate breath sample. Id. at ¶ 2. The hearing officer relied on the first adequate breath sample and suspended Keller's driving privileges for one year. Id. at ¶ 3. Keller argued the officer failed to follow the approved method in administering the Intoxilyzer test. Id. at ¶ 4. The officer testified:

For the second test he attempted to blow once, then he attempted to blow again and then he decided he was done. He wasn't trying to not cooperate, but he wasn't going to blow anymore. At that point in time, I should have let the machine time out. Without thinking about it, I hit the end test button.

Id. at ¶ 10. This Court looked to the approved method to determine the appropriate steps an officer must take when receiving a deficient sample:

If the subject does not blow with sufficient pressure and/or time to achieve an adequate breath sample, "Please Blow Until Tone Stops" will reappear with intermittent beeps. The subject has another three minutes to provide an adequate breath sample.

Id. In reversing the district court's judgment, this Court concluded:

[T]he officer did not wait to allow Keller the additional three minutes to provide an adequate second breath sample. Instead, the officer manually aborted the Intoxilyzer test sequence before the machine timed itself out. Consequently, the record does not show the notations for a deficient breath sample which are identified in the approved method's test interpretation section. In the findings of fact section, the hearing officer stated the "Intoxilyzer testing was done in accordance with the state toxicologist's approved method." However, the approved method is silent regarding a premature abortion of the testing sequence, and the Department did not offer expert testimony to address the effect of manually aborting the test before the machine timed out. We cannot say, without expert advice, that the officer's premature termination of the testing sequence did not affect the test results; thus, we conclude the agency's finding of fact that the testing

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