State v. Webster

• Decision Date: 30 March 2017
• Docket Number: No. 20160155,20160155
• Parties: STATE of North Dakota, Plaintiff and Appellee v. Jacob Colby WEBSTER, Defendant and Appellant
• Court: North Dakota Supreme Court

891 N.W.2d 769

STATE of North Dakota, Plaintiff and Appellee

v.Jacob Colby WEBSTER, Defendant and Appellant

No. 20160155

Supreme Court of North Dakota.

Filed March 30, 2017

Stephenie L. Davis, Assistant State's Attorney, 201 Fifth Street N.W., Suite 550, Watford City, N.D. 58854, for plaintiff and appellee.

Benjamin C. Pulkrabek, 402 First Street N.W., Mandan, N.D. 58554–3118, for defendant and appellant.

Kapsner, Justice.

[¶ 1] Jacob Webster appeals from a criminal judgment entered after a jury returned a general verdict finding him guilty of driving under the influence. Because a driver may not be criminally convicted for refusing a warrantless blood test incident to arrest under Birchfield v. North Dakota , ––– U.S. ––––, 136 S.Ct. 2160, 195 L.Ed.2d 560 (2016), we conclude the general verdict finding Webster guilty of driving under the influence under an instruction alternatively criminalizing the refusal to submit to a warrantless blood test incident to arrest was not harmless error beyond a reasonable doubt. We further conclude Webster was not entitled to a jury instruction on the legal requirements for a law enforcement officer to request a preliminary onsite breath screening test. We reverse and remand.

I

[¶ 2] According to a law enforcement officer, he stopped a vehicle driven by Webster in July 2014, after observing Webster's vehicle following too close to another vehicle and passing in a restricted area. The officer testified he initially did not detect the odor of alcohol emanating from Webster, but he ultimately noticed an odor of alcohol from Webster. The officer testified Webster failed a horizontal gaze nystagmus test

and "walk and turn" test, passed a "one-leg stand" test, and performed satisfactorily on an "alphabet" test, but unsatisfactorily on a "backwards count" test and a "finger count" test. The officer testified Webster refused to submit to a preliminary onsite breath screening test after being read an implied consent advisory requiring that test. According to the officer, he then arrested Webster for driving under the influence, read him Miranda rights and the implied consent advisory for chemical tests after arrest, and he refused to submit to a requested warrantless blood test incident to arrest.

[¶ 3] The State charged Webster with a class B misdemeanor for driving under the influence under N.D.C.C. § 39–08–01, alleging he either drove while under the influence or refused a chemical test. Webster made a pre-trial motion to dismiss, arguing the criminal charge for refusing a chemical test violated his state and federal constitutional rights. The district court denied Webster's motion.

[¶ 4] An initial jury trial resulted in deadlocked jury. At a second jury trial in April 2016, the district court refused Webster's oral request to instruct the jury on the information an officer must possess before requesting a preliminary onsite breath screening test. The court "noted" Webster's objection, but said the instruction involved matters for a pre-trial motion and not for the jury. Without objection by either party, the court instructed the jury it could find Webster guilty of driving under the influence if it found he drove a vehicle on a highway and was either under the influence of intoxicating liquor, or refused to submit to an onsite screening test, or refused to submit to a blood test after being arrested. During deliberations, the jury asked the court, "[i]s it legal for law enforcement to ask someone to submit to a breathalyzer under any circumstances?" The court instructed the jury to rely on the instructions provided, and the jury thereafter returned a general verdict finding Webster guilty of driving under the influence.

II

[¶ 5] Webster argues Birchfield , 136 S.Ct. 2160, precludes a criminal prosecution for refusing to submit to a warrantless blood test incident to a lawful arrest and the district court should not have instructed the jury it could find him guilty of driving under the influence if the jury found he refused to submit to the warrantless blood test. Webster admits there was no objection to those jury instructions, but argues the instructions are obvious error affecting a substantial right. The State responds the instructions are subject to a harmless error analysis and the instruction was harmless error beyond a reasonable doubt because the record is clear Webster refused to submit to an onsite breath screening test and the jury could have found him guilty of refusing that test.

[¶ 6] Under the general verdict form and instructions, the jury could find Webster guilty of driving under the influence if the jury found he drove a vehicle on a highway and was either (1) under the influence of intoxicating liquor, or (2) refused to submit to an onsite screening test, or (3) refused to submit to a chemical test of his blood after being arrested. One of the ways for finding Webster guilty of driving under the influence—refusal of a warrantless blood test incident to arrest—is no longer a cognizable offense after Birchfield and a conviction based on that theory of driving under the influence cannot stand. See Birchfield , 136 S.Ct. at 2186 (holding warrantless blood test incident to arrest violates Fourth Amendment and reversing conviction for refusing warrantless blood test incident to arrest).¹

[¶ 7] In Dominguez v. State , 2013 ND 249, ¶ 22, 840 N.W.2d 596, in the context of a post-conviction proceeding for relief from an attempted murder conviction, this Court considered an analogous issue and said one of two alternative charges for attempted murder was not a cognizable offense. This Court said a general verdict form authorizing a guilty verdict without differentiating between the valid charge for attempted murder and the charge that was not a cognizable offense raised constitutional implications and was reviewable under a harmless error analysis to determine whether the error was harmless beyond a reasonable doubt. Id. at ¶¶ 23 –27.

[¶ 8] To establish obvious error, a defendant must show: (1) error; (2) that is plain; and (3) affects substantial rights. State v. Kruckenberg , 2008 ND 212, ¶ 15, 758 N.W.2d 427 ; State v. Wegley , 2008 ND 4, ¶ 14, 744 N.W.2d 284. If the error affects a defendant's constitutional rights, the prosecution must prove beyond a reasonable doubt the error was harmless and did not contribute to the verdict. Kruckenberg , at ¶ 15 ; State v. Faul , 300 N.W.2d 827, 833 (N.D. 1980). When determining whether the error was harmless beyond a reasonable doubt, we consider the probable effect of the error in light of all the evidence. Kruckenberg , at ¶ 15 ; State v. Smuda , 419 N.W.2d 166, 168 (N.D. 1988).

[¶ 9] Here, the general jury verdict and instructions authorized the jury to find Webster guilty of driving under the influence if the jury found he drove on a highway and was either under the influence of intoxicating liquor, or refused to submit to the onsite screening test, or refused to submit to a blood test after arrest. In light of Birchfield , 136 S.Ct. at 2186, which was decided while this case was on direct appeal, a conviction for refusing a warrantless blood test incident to arrest is not a cognizable offense and implicates Webster's constitutional rights. The jury thus was left with two legally cognizable ways to find Webster guilty of driving under the influence—refusing the onsite screening test or driving while under the influence of intoxicating liquor. The evidence in this record is meager regarding the level of Webster's intoxication, and we cannot say with any degree of certainty the jury found Webster guilty under the alternative requiring him to be under the influence of intoxicating liquor. Although Webster does not dispute he refused to submit to the onsite screening test, the record reflects a deadlocked jury in the first criminal trial and the jury in the second trial submitted a question to the court asking whether it was "legal for law enforcement to ask someone to submit to a breathalyzer under any circumstances?" The jury's question clearly manifests some uncertainty about the circumstances for requesting a breath test, which raises serious questions about whether the jury found Webster guilty of refusing the onsite breath test, or the blood test after arrest. On this record, we conclude the erroneous instruction about the blood test refusal was not harmless beyond a reasonable doubt. Under that standard and the facts and circumstances of this case, we are simply unable to conclude the instructions were harmless beyond a reasonable doubt. We therefore reverse the judgment and remand for a new trial.

III

[¶ 10] Although the issue about the general verdict and the instructions is dispositive of this appeal, Webster also raises another issue that is likely to arise on remand and we will address that issue. See State v. Samshal , 2013 ND 188, ¶ 12, 838 N.W.2d 463 ; State v. Lamb , 541 N.W.2d 457, 462 (N.D. 1996).

[¶ 11] Webster argues the district court should have instructed the jury on the requisite information a law enforcement officer must possess before the officer may request a motorist to submit to a preliminary onsite breath screening test. The State responds the court correctly refused to give an instruction describing when an officer may request an onsite breath screening test because the resolution of that issue is not a jury question.

[¶ 12] Rule 30, N.D.R.Crim.P., requires a party to submit written requests for jury instructions in criminal cases. See State v. Miller , 466 N.W.2d 128, 133 (N.D. 1991) ; State v. Marks , 452 N.W.2d 298, 303–04 (N.D. 1990). Here, Webster did not provide the district court with a written instruction; rather, he orally raised the issue about the jury instruction during the court's colloquy with the parties about final jury instructions:

[DEFENSE COUNSEL]: Based on the testimony of the officer and what has become before us, under the refusal portion I feel that it's important to include that upon a

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