927 N.W.2d 430
N.D.2019Background
- Brent Vigen was arrested for DUI, read a modified implied consent advisory that omitted any reference to urine testing, and consented to a breath test that showed BAC over the limit.
- Vigen moved to suppress the breath-test results, arguing the advisory violated the statutory implied-consent language required by N.D.C.C. § 39-20-01(3)(a) and thus the results were inadmissible under § 39-20-01(3)(b).
- The district court denied the suppression motion, found the modified advisory satisfied the statute, and Vigen entered a conditional guilty plea reserving the suppression issue for appeal.
- The State conceded the advisory omitted reference to urine, arguing the omission was justified by constitutional limits on warrantless urine collection and because the test requested was breath only.
- The Supreme Court held the omission was a substantive modification that made the advisory incomplete and therefore the breath-test evidence was inadmissible under the statutory exclusionary rule.
- The Court reversed the judgment and remanded to allow Vigen to withdraw his guilty plea.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether omitting reference to urine from the implied-consent advisory renders subsequent chemical-test results inadmissible under the statutory exclusionary rule | Vigen: omission made the advisory incomplete under N.D.C.C. § 39-20-01(3)(a), triggering exclusion under § 39-20-01(3)(b) | State: omission was permissible because warrantless urine testing is unconstitutional absent exception (Helm/Birchfield), and the breath test request rendered urine language irrelevant | Court: omission was a substantive alteration; advisory was incomplete and breath-test results are inadmissible |
| Whether accuracy of legal explanation matters for admissibility under § 39-20-01(3)(b) | Vigen: statutory text requires conveying the statute's content, not a tailored explanation | State: law enforcement may adjust advisory to reflect constitutional limits | Court: admissibility depends on whether officer informed the driver of the statutory content; accuracy or policy-based tailoring does not cure omission |
| Whether prior cases permit non‑verbatim deviations so long as substance conveyed | Vigen: insists full statutory substance must be conveyed | State: relies on LeClair allowing non‑verbatim readings when substantive information is communicated | Court: reaffirms LeClair but distinguishes factual omission here as not remediable by other language; omission substantive and fatal |
| Remedy when advisory is incomplete | Vigen: suppression and ability to withdraw plea | State: enforcement of conviction | Court: suppress test results and remand to allow plea withdrawal |
Key Cases Cited
- State v. Graf, 721 N.W.2d 381 (N.D. 2006) (standard of review for suppression findings)
- State v. O'Connor, 877 N.W.2d 312 (N.D. 2016) (officer must read complete implied-consent advisory before testing)
- LeClair v. Sorel, 920 N.W.2d 306 (N.D. 2018) (non‑verbatim readings allowed if all substantive statutory information is conveyed)
- Schoon v. N.D. Dep't of Transp., 917 N.W.2d 199 (N.D. 2018) (substantive omission of statutory advisory language renders tests inadmissible)
- Birchfield v. North Dakota, 136 S. Ct. 2160 (U.S. 2016) (warrantless blood tests impermissible absent exception; motorists cannot be criminally punished for refusing blood test)
- State v. Helm, 901 N.W.2d 57 (N.D. 2017) (warrantless collection of urine is an impermissible search absent exception)