920 N.W.2d 735
N.D.2018Background
- In Oct. 2017 Officer Wentz found Thomas Barendt slumped in his vehicle during a welfare check, suspected impairment, and administered field sobriety tests; Barendt refused a preliminary breath test.
- Wentz told Barendt the implied consent advisory and Barendt agreed to a chemical breath test.
- Wentz then arrested Barendt for actual physical control while under the influence and administered a breath test at the county jail, which showed BAC over .08.
- Barendt moved to suppress the chemical test results because he was not given the implied consent advisory after arrest and before the test; the district court granted the motion.
- The City appealed, arguing (1) the suppression motion was untimely under the court’s pretrial motion deadline, and (2) the advisory need only be given contemporaneously with arrest (not necessarily after arrest and before testing).
- The Supreme Court reviewed statutory interpretation of N.D.C.C. § 39-20-01 and affirmed suppression, holding the advisory must be read after arrest and before administering a chemical test.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Timeliness of suppression motion | City: motion was untimely under court’s pretrial deadline; should be denied | Barendt: court may consider untimely motions for good cause; no prejudice to City | Court: district court did not abuse discretion; considered motion (good cause implicit; filed two months before trial; no shown prejudice) |
| When implied-consent advisory must be given | City: advisory need only be contemporaneous to arrest; not required to be read after arrest and before test | Barendt: statute requires officer to arrest, then inform (i.e., advisory after arrest and before test) | Court: advisory must be read after placing the individual under arrest and before administering the chemical test; results suppressed for noncompliance |
Key Cases Cited
- State v. O'Connor, 877 N.W.2d 312 (N.D. 2016) (held incomplete advisory given after arrest but missing required elements rendered test inadmissible)
- Zajac v. Traill County Water Res. Dist., 881 N.W.2d 666 (N.D. 2016) (statutory interpretation is reviewable de novo)
- State v. Ngale, 914 N.W.2d 495 (N.D. 2018) (statutory interpretation principles and legislative intent)
- Broeckel v. Moore, 498 N.W.2d 170 (N.D. 1993) (statutes on same subject should be harmonized)