State v. Kolstad, 942 N.W.2d 865

UND officer stopped Stanley Kolstad for suspected DUI; Kolstad reported he had asthma and performed FSTs and a preliminary breath test that produced no valid result.
Kolstad was arrested and taken to the station for an Intoxilyzer test; the Intoxilyzer also produced deficient results because Kolstad allegedly did not provide sufficient breath.
Defense requested all audio/video recordings (including any that were altered, edited, destroyed, or discarded); State produced dash cam footage but not officers’ body‑worn camera footage.
Officers Nelson and Waltz testified their body cameras had recorded; Nelson’s footage was unintentionally deleted when uploading to UND servers, and Waltz initially said his footage uploaded but later testified it too had been inadvertently deleted.
The district court dismissed only the refusal‑to‑submit chemical test charge under Rule 16 for the State’s discovery violation (not as an acquittal), reasoning the missing video was materially prejudicial and dismissal was warranted during trial.
North Dakota Supreme Court reversed: held no Brady/due‑process violation (no bad faith and footage was not preserved), and the district court abused its discretion by imposing the extreme sanction of dismissal without considering lesser remedies (e.g., continuance).

Issue	State's Argument	Kolstad's Argument	Held
Is the district court’s dismissal of the refusal charge appealable or an acquittal?	Dismissal was effectively an acquittal and not appealable.	The order was a dismissal/quash based on a discovery/legal ruling and is appealable.	Appealable: court looked to substance; ruling was legal dismissal for discovery violation, not resolution of guilt.
Did the State’s failure to disclose that body‑cam footage existed but was deleted violate Kolstad’s due process/Brady rights?	No — Brady requires that evidence be collected and preserved; deleted footage was not preserved and there is no evidence of bad faith.	Yes — missing footage was favorable and its nondisclosure prejudiced the defense.	No Brady/due‑process violation: no bad faith in loss of evidence and suppression prong unmet because footage was not preserved.
Did the district court abuse its discretion by dismissing the refusal charge for the discovery violation?	Dismissal was appropriate given prejudice and trial timing.	Dismissal was proper to remedy prejudice from undisclosed/deleted footage.	Yes; dismissal was an abuse of discretion because the court did not consider lesser sanctions (continuance, other remedies) and used the most severe sanction without adequate inquiry.

Brady v. Maryland, 373 U.S. 83 (prosecution’s suppression of favorable evidence violates due process)
Arizona v. Youngblood, 488 U.S. 51 (absent bad faith, failure to preserve potentially useful evidence is not a due process violation)
State v. Steffes, 500 N.W.2d 608 (framework distinguishing failure to collect, preserve, or suppress evidence)
State v. Schmidt, 817 N.W.2d 332 (discussion of categories for lost or suppressed evidence)
State v. McNair, 491 N.W.2d 397 (Rule 16 remedies and preference for least severe sanction to cure prejudice)
State v. Vigen, 927 N.W.2d 430 (addressing suppression of chemical test evidence)
State v. Bernsdorf, 784 N.W.2d 126 (State’s statutory right to appeal limited to certain orders)
State v. Erickson, 795 N.W.2d 375 (substance-over-form test to determine if a dismissal is an acquittal)