City of West Fargo v. Ekstrom, 938 N.W.2d 915

Mandie Ekstrom was charged with DUI after an Intoxilyzer 8000 breath test indicated impairment and requested a jury trial in district court.
At the first trial (Oct. 2018) a police officer testified about the chemical test result before proper foundational proof (installation/inspection) was offered; the court sustained an objection to admission of the test and granted a mistrial.
The City was given time to re-notice trial; Ekstrom moved to dismiss on federal and state double jeopardy grounds; the district court denied the motion and this Court denied supervisory relief.
At the second trial (Feb. 2019) the City cured foundation defects, offered expert testimony, and the chemical test result was admitted; the jury convicted Ekstrom of DUI.
At sentencing the court elevated the conviction to aggravated first-offense DUI based on a court finding the BAC was .167 (over the .16 aggravator) even though the jury made no specific finding that BAC was .16 or greater.
The Supreme Court affirmed the conviction, held retrial was not barred by double jeopardy under Oregon v. Kennedy, but reversed and remanded for resentencing because the jury did not find the .16 aggravating fact.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether retrial after a defendant‑moved mistrial was barred by double jeopardy	City: officer’s inadvertent testimony was an unintended mistake; no intent to "goad" defendant; retrial permitted under Kennedy	Ekstrom: City’s conduct (eliciting prejudicial inadmissible result and failing to cure) provoked mistrial; double jeopardy bars retrial; state constitution may afford greater protection	Held: Retrial not barred. Under Kennedy, defendant must show prosecutorial intent to provoke a mistrial; Ekstrom failed to prove intent; North Dakota follows Kennedy standard.
Whether the jury had to find the chemical breath test was .16 or greater before court could impose aggravated first‑offense DUI penalties	City: either the court can make the sentencing finding or, if not, remand for resentencing without relying on the mandatory minimum	Ekstrom: .16 is an aggravating fact that triggers mandatory minimums and must be found by the jury beyond a reasonable doubt (Apprendi/Alleyne)	Held: Reversed and remanded for resentencing. The .16 aggravator is a fact increasing mandatory punishment and the jury did not find it, so the court may not rely on the mandatory minimum.

Oregon v. Kennedy, 456 U.S. 667 (1982) (double jeopardy bars retrial only when prosecutor intended to "goad" defendant into moving for a mistrial)
Apprendi v. New Jersey, 530 U.S. 466 (2000) (any fact that increases the penalty beyond statutory maximum must be proved to a jury beyond a reasonable doubt)
Alleyne v. United States, 570 U.S. 99 (2013) (any fact that increases mandatory minimum must be found by a jury beyond a reasonable doubt)
United States v. Dinitz, 424 U.S. 600 (1976) (defendant retains primary control after prosecutorial error; retrial barred only when government conduct intended to provoke mistrial)
Downum v. United States, 372 U.S. 734 (1963) (discussion of prosecutorial harassment as double jeopardy concern)
State v. Voigt, 2007 ND 100, 734 N.W.2d 787 (N.D. 2007) (applies Kennedy standard in North Dakota)
Day v. Haskell, 2011 ND 125, 799 N.W.2d 355 (N.D. 2011) (jeopardy attaches when jury empaneled and sworn)
Ell v. Dir., Dep’t of Transp., 2016 ND 164, 883 N.W.2d 464 (N.D. 2016) (foundation requirements for Intoxilyzer evidence)
State v. Watkins, 2017 ND 165, 898 N.W.2d 442 (N.D. 2017) (Apprendi/Alleyne principles and invited error doctrine)