857 N.W.2d 374
N.D.2014Background
- On Dec. 22, 2013, a deputy responding to a hit-and-run went to the registered owner’s residence, found James Nagel, observed indicia of intoxication, and confirmed Nagel had driven that evening.
- Nagel initially refused field sobriety testing and initially refused any tests, but after the deputy read the implied-consent advisory (N.D.C.C. § 39-20-14(3)) he agreed to a pre-arrest onsite breath screening.
- The onsite screening returned a .198% alcohol concentration; Nagel was then arrested and submitted to an Intoxilyzer breath test.
- Nagel moved to suppress the breath-test results, arguing his consent to the pre-arrest onsite screening was involuntary because he agreed only after being told refusal was a crime and carried license-revocation consequences.
- The district court denied the motion to suppress; Nagel entered a conditional plea reserving the suppression issue and appealed.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether consent to the pre-arrest onsite screening was voluntary | State: implied-consent advisory properly read; statutory framework permits the request and consent was voluntary | Nagel: advisory that refusal is a crime coerced consent to the onsite screening, so the screening (and subsequent evidence) must be suppressed | Court held consent was voluntary under the totality of circumstances and denial of suppression affirmed |
| Whether pre-arrest onsite screening tests should be treated differently than post-arrest chemical tests | State: no meaningful distinction for voluntariness analysis; implied-consent advisory not coercive | Nagel: pre-arrest screening is used to create probable cause, so advisory here is more coercive and renders consent involuntary | Court rejected a different rule for pre-arrest screenings and found no greater coercion than for post-arrest tests |
| Whether evidence obtained after the onsite screening is fruit of an illegal search | State: screening was consensual, so later evidence admissible | Nagel: screening was coerced; later Intoxilyzer results are tainted fruit | Court held because consent to the screening was voluntary, later evidence need not be suppressed |
| Whether the argument distinguishing pre-arrest vs post-arrest tests was preserved | State: contention not clearly raised below | Nagel: argued at hearing that evidence after onsite test should be suppressed due to coercion from advisory | Court found the issue sufficiently raised and addressed it on the merits |
Key Cases Cited
- State v. Smith, 849 N.W.2d 599 (N.D. 2014) (implied-consent advisory does not automatically render post-arrest chemical-test consent involuntary)
- State v. Torkelsen, 752 N.W.2d 640 (N.D. 2008) (‘‘fruit of the poisonous tree’’ suppression principles)
- City of Fargo v. Wonder, 651 N.W.2d 665 (N.D. 2002) (warrantless chemical tests are searches; consent exception applies)
- Skinner v. Railway Labor Execs.’ Ass’n, 489 U.S. 602 (U.S. 1989) (administration of breath/blood tests constitutes a search)
- Hoover v. Director, N.D. Dep’t of Transp., 748 N.W.2d 730 (N.D. 2008) (consent must be voluntary under the totality of circumstances)
- McCoy v. N.D. Dep’t of Transp., 848 N.W.2d 659 (N.D. 2014) (implied-consent advisory not coercive when read post-arrest)
- State v. Fetch, (ND reporter) (N.D. 2014) (driver who initially refused can later cure refusal by consenting)