965 N.W.2d 47
N.D.2021Background
- On March 8, 2020, officers stopped Bonnie Nygaard, observed signs of intoxication, and obtained a preliminary breath test reading of .203.
- Nygaard was arrested, taken to the county jail, advised with the implied-consent advisory, and attempted two chemical breath tests; both samples were insufficient.
- Deputy/Officer warned Nygaard that failure to provide a sufficient sample could result in a DUI-Refusal citation; she again provided insufficient samples.
- Nygaard was charged under Jamestown Municipal Code § 21-04-06 (DUI-Refusal). She moved to suppress/dismiss, the motion was denied, and she entered a conditional guilty plea reserving the right to appeal.
- The appeal raised whether N.D.C.C. § 39-08-01(1)(f) requires advising drivers of criminal penalties before prosecuting refusal, and whether this court should overrule City of Jamestown v. Casarez.
- The Supreme Court of North Dakota affirmed, holding subdivision (f) does not require advising drivers of criminal penalties and rejecting the request to overrule Casarez.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether N.D.C.C. § 39-08-01(1)(f) requires advising drivers of criminal penalties before they can be charged with refusal | City: Ordinance and statute are consistent; no requirement beyond constitutional compliance | Nygaard: Plain meaning of § 39-08-01(1)(f) mandates advice of criminal penalties before prosecution for refusal | Court: § 39-08-01(1)(f) does not require advising drivers of criminal penalties; affirmed |
| Whether Casarez should be overruled | City: Casarez correctly interpreted subdivision (f) and legislative amendments | Nygaard: Casarez was wrongly decided; legislative history supports a different reading | Court: Declined to overrule Casarez; statutory text is unambiguous and controls |
Key Cases Cited
- City of Jamestown v. Casarez, 958 N.W.2d 467 (N.D. 2021) (interpreting § 39-08-01(1)(f), holding refusal evidence governed by constitutional standards and no conflict with municipal ordinance)
- State v. Long, 950 N.W.2d 178 (N.D. 2020) (held subdivision f limits advisory to consequences of refusal and does not create a right-to-refuse advisory)
- Grosgebauer v. North Dakota Dep’t of Transp., 747 N.W.2d 510 (N.D. 2008) (explains implied-consent advisory presumes consent but allows statutory grace to opt out)
- Schoon v. North Dakota Dep’t of Transp., 917 N.W.2d 199 (N.D. 2018) (special concurrence urging legislative removal of exclusionary rule so cases rest on constitutional grounds)