City of Bismarck v. Vagts, 932 N.W.2d 523

In Aug. 2018 Melanie Vagts was encountered by Officer Baker seated in the driver’s seat of a parked vehicle after a report of erratic driving; officer asked occupants to lower music and asked Vagts to exit the vehicle.
Officer observed indicia of alcohol (odor, slurred speech, bloodshot eyes); Vagts denied driving and refused field sobriety tests.
Officer arrested Vagts, read Miranda and an implied-consent advisory that omitted the phrases "directed by the law enforcement officer" and "a crime."
Vagts submitted to a breath test showing BAC above the legal limit and was charged with actual physical control while under the influence.
Vagts moved to suppress evidence arguing (1) the initial encounter/seizure was unlawful and (2) the implied-consent advisory was statutorily deficient; the district court denied suppression and she entered a conditional guilty plea.
The Supreme Court affirmed that the approach/requests were not a Fourth Amendment seizure but held the implied-consent advisory materially omitted the phrase "directed by the law enforcement officer," rendering the breath test inadmissible and reversing to allow withdrawal of the plea.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether officer's approach and asking Vagts to exit the parked car constituted an unconstitutional seizure	Vagts: officer's commands (turn down music, exit vehicle) lacked reasonable suspicion and were a seizure; evidence must be suppressed	State: approach and conversational requests to occupants of a stopped/parked vehicle were not a seizure; further facts supplied reasonable suspicion for arrest	Court: No Fourth Amendment seizure — requests were conversational and supported by testimony; denial of suppression on this ground affirmed
Whether omission of statutory phrases in the implied-consent advisory rendered the breath-test result inadmissible	Vagts: advisory omitted "directed by the law enforcement officer" and "a crime," making the advisory substantively deficient under N.D.C.C. § 39-20-01(3)(a) and test inadmissible under § 39-20-01(3)(b)	State: omissions did not substantively change advisory meaning; context conveyed officer direction and criminality so test admissible	Court: omission of "directed by the law enforcement officer" was a substantive statutory omission — advisory did not comply and breath-test results are inadmissible; reversal and remand to permit withdrawal of plea

State v. Bohe, 2018 ND 216, 917 N.W.2d 497 (discussing implied-consent test procedures and advisory requirements)
State v. O'Connor, 2016 ND 72, 877 N.W.2d 312 (holding test result inadmissible where advisory failed to state refusal is a crime)
LeClair v. Sorel, 2018 ND 255, 920 N.W.2d 306 (advisory may be substantively sufficient despite some omitted words; substantive omissions control)
Abernathey v. N.D. Dep't of Transp., 2009 ND 122, 768 N.W.2d 485 (distinguishing approaches to parked vehicles from stops of moving vehicles)
State v. Reis, 2014 ND 30, 842 N.W.2d 845 (Fourth Amendment seizure standards for police encounters)