City of Grand Forks v. Barendt

2018 ND 272, 920 N.W.2d 735
CourtNorth Dakota Supreme Court
DecidedDecember 6, 2018
Docket20180227
StatusPublished
Cited by6 cases

This text of 2018 ND 272 (City of Grand Forks v. Barendt) is published on Counsel Stack Legal Research, covering North Dakota Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
City of Grand Forks v. Barendt, 2018 ND 272, 920 N.W.2d 735 (N.D. 2018).

Opinion

McEvers, Justice.

[¶ 1] The City of Grand Forks appeals a district court order suppressing the results of Thomas Barendt's chemical breath test after the City charged Barendt with actual physical control of a vehicle while under the influence of alcohol. We affirm, concluding North Dakota's implied consent advisory must be read after placing an individual under arrest and before the administration of a chemical test.

*736 I

[¶ 2] According to the facts as agreed to by the parties, in October 2017, while conducting a welfare check in Grand Forks, Officer Luke Wentz observed Barendt slumped over in his vehicle. After interacting with Barendt, Wentz suspected Barendt may be under the influence of alcohol. Wentz administered field sobriety tests, and Barendt refused a preliminary breath test.

[¶ 3] Wentz informed Barendt of the North Dakota implied consent advisory and Barendt agreed to take a chemical breath test. Wentz then arrested Barendt for actual physical control of a vehicle while under the influence of alcohol and administered a breath test at the Grand Forks County Correctional Center. The breath test results showed Barendt's blood alcohol concentration was above 0.08 percent.

[¶ 4] In March 2018 before trial, Barendt moved to suppress the results of the chemical breath test because he was not given the implied consent advisory after he was arrested and before Wentz administered the test. The district court agreed and suppressed Barendt's breath test results. Relying on State v. O'Connor , 2016 ND 72 , 877 N.W.2d 312 , the court concluded "that the rule of law in North Dakota is that an implied consent advisory must be given after an individual has been placed under arrest and before the chemical test is administered."

II

[¶ 5] The City argues the district court erred in suppressing the results of Barendt's chemical breath test because Barendt filed his suppression motion after the pretrial motion deadline.

[¶ 6] The district court established a January 19, 2018, pretrial motion deadline. Barendt's original trial date was March 13, 2018; however, trial was continued to May 22, 2018, after the City requested a continuance. The pretrial motion deadline was not extended, and Barendt filed his motion to suppress on March 22, 2018.

[¶ 7] Under N.D.R.Crim.P. 12(c)(1), "[t]he court may ... set a deadline for the parties to make pretrial motions and may also schedule a motion hearing." "At any time before trial, the court may extend or reset the deadline for pretrial motions." N.D.R.Crim.P. 12(c)(2). If a party does not meet the deadline established for filing pretrial motions, "the motion is untimely. But a court may consider the defense, objection, or request if the party shows good cause." N.D.R.Crim.P. 12(c)(3).

[¶ 8] The parties and the district court acknowledged Barendt's motion was not timely; however, the court considered and granted the motion, explaining:

[T]he motion in this case pertains to the admissibility of Intoxilyzer test results pursuant to statute. It is a foundational requirement that the City adhere to the implied consent laws in order to use the test results as evidence. The Court finds that the admissibility of the test results could and would be challenged, in any event, before or even during trial on the matter. Therefore, the Court is considering and ruling upon the Defendant's motion at this time.

[¶ 9] Under N.D.R.Crim.P. 12(c)(3), a district court may consider an untimely motion if the party shows good cause. Here, the court implicitly found Barendt showed good cause for the untimely motion by finding the admissibility of Barendt's chemical test results could have been challenged at trial. Although Barendt's motion was untimely, he filed it two months before trial, and the City has not shown it was prejudiced by the court's decision to consider the motion. We conclude *737 the court did not abuse its discretion by considering Barendt's motion to suppress.

III

[¶ 10] The City argues there is no requirement that an officer must read an individual the implied consent advisory after placing the individual under arrest and before administering a chemical test. The City argues the results of a chemical test are admissible so long as the reading of the implied consent advisory is contemporaneous to arrest.

[¶ 11] Statutory interpretation is a question of law, fully reviewable on appeal. Zajac v. Traill Cty. Water Res. Dist. , 2016 ND 134 , ¶ 6, 881 N.W.2d 666 . The primary objective in interpreting statutes is to determine legislative intent, as that intent is expressed in the statute's language. State v. Ngale , 2018 ND 172 , ¶ 10, 914 N.W.2d 495 . Words in a statute are given their plain, ordinary, and commonly understood meaning, unless a contrary intention plainly appears. N.D.C.C. § 1-02-02. "Statutes relating to the same subject matter should be construed together so as to harmonize them if possible." Broeckel v. Moore , 498 N.W.2d 170 , 172 (N.D. 1993).

[¶ 12] The implied consent requirements for chemical testing of a motor vehicle driver to determine alcohol concentration are set forth in N.D.C.C. § 39-20-01. The statutory directives relating to a law enforcement officer's administration of a chemical test are contained in N.D.C.C. § 39-20-01(2) and (3) :

2. The test or tests must be administered at the direction of a law enforcement officer only after placing the individual under arrest and informing that individual that the individual is or will be charged with the offense of driving or being in actual physical control of a vehicle upon the public highways while under the influence of intoxicating liquor, drugs, or a combination thereof. For the purposes of this chapter, the taking into custody of a child under section 27-20-13 or an individual under twenty-one years of age satisfies the requirement of an arrest. The law enforcement officer shall determine which of the tests is to be used.
3. a.

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Related

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City of Grand Forks v. Barendt
2018 ND 272 (North Dakota Supreme Court, 2018)

Cite This Page — Counsel Stack

Bluebook (online)
2018 ND 272, 920 N.W.2d 735, Counsel Stack Legal Research, https://law.counselstack.com/opinion/city-of-grand-forks-v-barendt-nd-2018.