State v. Smith, 2014 ND 152

On July 21, 2013, a Burleigh County deputy stopped and arrested Joseph Smith for DUI after observing driving impairment and failed field sobriety tests.
Smith was advised twice of North Dakota’s implied consent advisory (including that refusal is a crime and can lead to license revocation) and consented first to a preliminary breath test (0.156) and then, after arrest, to an Intoxilyzer 8000 chemical breath test (0.152).
Smith moved to suppress the Intoxilyzer result, arguing the warrantless test was unlawful because his consent was coerced by the statutory criminal penalty and McNeely’s limitation on warrantless DUI evidence collection.
The district court denied suppression; Smith entered a conditional guilty plea reserving the right to appeal the suppression ruling and appealed.
The North Dakota Supreme Court reviewed voluntariness of consent under the totality of circumstances and affirmed the denial of suppression.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether Smith voluntarily consented to a warrantless breath test	State: consent was voluntary; implied-consent advisory properly given and choice remained	Smith: advisory that refusal is a crime coerced consent, rendering warrantless test unconstitutional under McNeely and the Fourth Amendment	Held: Consent was voluntary under the totality of circumstances; suppression properly denied
Whether McNeely requires a warrant for breath tests absent exigency	State: McNeely addressed blood draws/exigent circumstances; consent is a separate exception	Smith: McNeely equates DUI searches with other evidence searches, implying need for warrant absent voluntary consent	Held: McNeely narrows per se exigency for blood draws but does not make consent exception invalid; voluntariness governs here
Whether reading of statutory advisory is misleading/coercive	State: advisory mirrored statute and was not misleading; defendant was given a choice	Smith: criminalization of refusal plus custody (handcuffed in cruiser) made the choice involuntary	Held: Advisory was statutory and not misleading; custody alone did not render consent involuntary
Burden of proof on warrantless search exception	State: must prove a warrantless search falls within an exception (consent)	Smith: State failed to prove consent was voluntary	Held: State met its burden; record supports voluntariness

Missouri v. McNeely, 569 U.S. 141 (2013) (natural dissipation of alcohol is not a per se exigency; exigency requires case-by-case analysis)
Neville v. United States, 459 U.S. 553 (1983) (refusal to submit to chemical test may be used in prosecution; attaching penalties to refusal does not necessarily coerce Fifth Amendment self-incrimination)
State v. Brooks, 838 N.W.2d 563 (Minn. 2013) (criminalizing refusal does not automatically render consent involuntary when advisory is given)
State v. Murphy, 527 N.W.2d 254 (N.D. 1995) (drivers may refuse testing; penalties for refusal are a matter of legislative grace)
State v. Mitzel, 685 N.W.2d 120 (N.D. 2004) (consent must be voluntary under totality of circumstances; State bears burden to show exception to warrant requirement)