917 N.W.2d 199
N.D.2018Background
- Deputy Alm stopped Tre Schoon for speeding, detected odors of marijuana and alcohol, observed signs of impairment, and Schoon admitted to drinking. Field sobriety tests and a preliminary breath test produced results above the presumptive limit; Schoon was arrested and asked to submit to a blood test, which he consented to.
- At arrest the officer read an implied-consent advisory that warned refusal of a chemical test could result in license revocation, but omitted statutory language that refusal to submit to a blood test is a crime punishable like DUI.
- Schoon moved to suppress the blood-test result at the administrative hearing under N.D.C.C. § 39-20-01(3)(b) because the officer did not give the complete advisory required by § 39-20-01(3)(a).
- The hearing officer and the district court denied suppression and upheld a two-year suspension; Schoon appealed to the North Dakota Supreme Court.
- The State argued Birchfield v. North Dakota limited or changed the advisory’s effect after the U.S. Supreme Court held criminal penalties for refusing a warrantless blood test are unconstitutional, and that the omitted language should not trigger inadmissibility.
- The Supreme Court reversed the suspension, holding the statutory admissibility condition in § 39-20-01(3)(b) applies as written and the blood-test result was inadmissible because the required advisory was not fully given.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether blood-test results are admissible under N.D.C.C. § 39-20-01(3)(b) when the officer omits the statutory blood-refusal criminal-penalty language from the implied-consent advisory | Schoon: officer failed to give the complete advisory required by § 39-20-01(3)(a); omission renders the test inadmissible under (3)(b) | DOT/State: Birchfield made the criminal-penalty language unconstitutional as applied to blood tests, so officers may omit that portion without triggering inadmissibility | Held: (3)(b) applies as written; omission of the statutory advisory made the blood-test result inadmissible; reversal and reinstatement of Schoon’s license |
| Whether Birchfield implicitly invalidated or altered the statutory advisory or the admissibility rule so officers could omit advisory language | Schoon: Birchfield does not abrogate the statutory advisory or the (3)(b) consequence | State: Birchfield required removing criminal-penalty reference as applied to blood tests, so omission is permissible to avoid unconstitutional application | Held: Birchfield did not implicitly abrogate § 39-20-01(3); courts must apply the statute as written and not rewrite it to aid the State |
| Whether the court may reinterpret the statute to avoid practical problems for law enforcement created by Birchfield | Schoon: N/A | State: Court should narrow or reinterpret (3)(b) to prevent the impractical result of making admissible warrantless blood tests impossible | Held: Court refused to amend statute by judicial interpretation; remedy belongs to Legislature |
| Whether Schoon waived an as-applied constitutional challenge or whether the State can assert such a challenge to avoid suppression | Schoon: did not raise a constitutional challenge; seeks statutory protection | State: may invoke constitutional concerns to justify omission | Held: The State cannot use the Fourteenth Amendment to erase statutory protections; Schoon’s lack of an as-applied constitutional claim means statute applies normally |
Key Cases Cited
- Birchfield v. North Dakota, 136 S. Ct. 2160 (2016) (U.S. Supreme Court held motorists cannot be criminally punished for refusing a warrantless blood test and cautioned about warrantless blood draws)
- State v. O'Connor, 877 N.W.2d 312 (N.D. 2016) (interpreting § 39-20-01(3) and holding statutory advisory omissions render test results inadmissible)
- McCoy v. N.D. Dep't of Transp., 848 N.W.2d 659 (N.D. 2014) (standards for appellate review of administrative agency decisions)