State v. O'Connor, 2016 ND 72

Officer stopped Blaise O’Connor for a defective taillight, observed signs of intoxication, and administered field sobriety tests and an onsite screening breath test (result over the presumptive limit).
Before the onsite screening the officer gave an implied-consent advisory; dispute whether it was the screening-test advisory (N.D.C.C. § 39-20-14(3)) or the chemical-test advisory (N.D.C.C. § 39-20-01(3)(a)).
Officer arrested O’Connor and transported him to jail; before the Intoxilyzer chemical test the officer gave an incomplete implied-consent advisory that omitted the warning that refusal of a chemical test “is a crime punishable in the same manner as driving under the influence.”
Officer administered the Intoxilyzer; result showed BAC above the presumptive limit.
O’Connor moved to suppress the Intoxilyzer result because the post-arrest advisory was incomplete; the district court granted suppression under N.D.C.C. § 39-20-01(3)(b).
State appealed; Supreme Court affirmed, holding the 2015 statutory amendment made chemical-test results inadmissible if the post-arrest advisory required by § 39-20-01(3)(a) was not given.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether an onsite screening advisory or a pre-arrest advisory can satisfy the statutory post-arrest advisory requirement for chemical tests	The earlier advisory (and O’Connor’s acknowledgement of remembering it) sufficed to meet statutory requirements; Salter supports that prior advisories can satisfy notice	Officer failed to give the full § 39-20-01(3)(a) advisory after arrest and before chemical testing, so the Intoxilyzer result is inadmissible under § 39-20-01(3)(b)	Held for defendant: a pre-arrest or screening advisory cannot substitute for the specific post-arrest advisory required by § 39-20-01(3)(a); suppression affirmed
Whether voluntary Fourth Amendment consent can cure a statutory advisory deficiency and render the chemical test admissible	Test results are admissible if the defendant voluntarily consented to the chemical test, relying on pre-amendment cases (Fossum, Hoffner, Abrahamson)	The 2015 amendment to § 39-20-01(3)(b) makes test results inadmissible in criminal/administrative proceedings unless the statutory post-arrest advisory was given, regardless of voluntariness	Held for defendant: statutory advisability requirement controls; prior voluntariness precedent abrogated by the 2015 amendment

State v. Boehm, 849 N.W.2d 239 (N.D. 2014) (standard of review for suppression and discussion of implied-consent framework)
State v. Salter, 758 N.W.2d 702 (N.D. 2008) (pre-amendment holding that prior advisories and factual circumstances could satisfy implied-consent requirements)
Fossum v. N.D. Dep’t of Transp., 843 N.W.2d 282 (N.D. 2014) (pre-amendment discussion that implied-consent statute does not apply when a driver voluntarily consents)
City of Bismarck v. Hoffner, 379 N.W.2d 797 (N.D. 1985) (historic recognition that voluntary consent to testing can make statutory implied-consent procedures inapplicable)
State v. Abrahamson, 328 N.W.2d 213 (N.D. 1982) (similar holding on voluntary consent to chemical testing)
City of Fargo v. Ruether, 490 N.W.2d 481 (N.D. 1992) (deference to legislative limits on admissibility of chemical/screening tests)