City of Bismarck v. Sokalski, 879 N.W.2d 88

At ~1:30 a.m. on May 12, 2014, Officer Paul Olson stopped Barbara Sokalski after observing a vehicle driving into oncoming traffic; Olson smelled alcohol, observed balance and speech problems, and conducted an HGN test which she failed.
Olson arrested Sokalski for DUI, testified he read the implied-consent advisory, requested a chemical test, and that Sokalski refused; Officer Josh Brown transported her to the county jail.
Sokalski moved to suppress evidence and dismiss the refusal charge; the district court denied those pretrial motions.
At trial the jury convicted Sokalski of DUI but acquitted her on the refusal charge. Sokalski then moved for a new trial under N.D.R.Crim.P. 33, alleging the prosecution presented false testimony and a “false case.”
The district court denied the new-trial motion, finding Sokalski failed to prove Olson or Brown testified falsely (perjured) or that the prosecutor knowingly elicited perjury; the court also noted inconsistencies could reflect memory differences.
The Supreme Court of North Dakota affirmed, holding the district court did not abuse its discretion because Sokalski failed to establish the elements required to prove prosecutorial use of perjured testimony.

Issue	Plaintiff's Argument (City)	Defendant's Argument (Sokalski)	Held
Whether prosecution elicited or failed to correct perjured testimony so as to require a new trial	Prosecutor presented officer testimony about reading implied-consent advisory and refusal; any inconsistencies were memory lapses and not known perjury	Olson and Brown gave conflicting accounts about who read the advisory and whether a request for a blood test/refusal was made; City knowingly presented a “false case” and elicited perjury	Court: No. Sokalski failed to prove the elements for prosecutorial use of perjured testimony; inconsistencies did not establish that witnesses knowingly lied
Whether the district court abused its discretion in denying a Rule 33 new-trial motion	District court’s factual findings about witness credibility and lack of proof of known falsehoods were reasonable	Denial was erroneous because the prosecution knowingly used false testimony and the inconsistency prejudiced her	Court: No abuse of discretion; court’s decision was not arbitrary, unreasonable, or a misapplication of law

Sampson v. State, 506 N.W.2d 722 (N.D. 1993) (sets elements for claim that prosecutor knowingly used perjured testimony)
State v. Jasmann, 862 N.W.2d 809 (N.D. 2015) (standard for reviewing prosecutorial misconduct claims and de novo review for constitutional violation)
State v. Kovalevich, 858 N.W.2d 625 (N.D. 2015) (defendant must assert new-trial grounds with particularity; abuse-of-discretion review for Rule 33 rulings)
Whiteman v. State, 643 N.W.2d 704 (N.D. 2002) (discusses limits and applicability of prior standards on prosecutorial misconduct)