CITY OF BISMARCK, Plaintiff and Appellee, v. James HOFFNER, Defendant and Appellant.
Cr. No. 1107.
Supreme Court of North Dakota.
Dec. 18, 1985.
379 N.W.2d 797
In the best of all worlds the trial courts would foresee all issues that might be raised on appeal and therefore meticulously prepare the orders which we review on appeal so there would be no question as to intent. Neither the trial courts nor, for that matter, this court can, in preparing the opinions and orders, foresee every issue that will arise in the future which will require an interpretation of an opinion or order. In this instance I believe the Ward County district court correctly interpreted the order of the McHenry County district court.
I would not object to applying prospectively the rule adopted by the majority opinion that the responding court must, in so many words, specifically state it nullifies the order for child support contained in the judgment attempted to be enforced. However, to conclude, after the fact, as does the majority opinion, that the August 29, 1980, order of the McHenry County district court does not so specifically provide is too formalistic.
Short of stating that the Ward County judgment is hereby modified or nullified, it is apparent to me that the August 1980 order of the McHenry County district court did specifically provide that it modified the Ward County judgment. As an example, it provided that no support payments would be due “as long as the two minor children are in the custody of the Respondent.” Although there apparently is some issue as to the months that the children were in the custody of Preston Fennell, that order, to me, clearly provides that it modifies the Ward County judgment which required payments each month without exception until the youngest child reached her 18th birthday. The obvious reason for this modification was that Preston would have the responsibility of providing for the children while they were in his custody and that he should not also have to make payments for those months. To now conclude, as does the majority opinion, that Preston must make payments for those months the children were in his custody is not only unjust, it is contrary to the specific provisions of the order.
I agree that past-due and unpaid arrearages cannot be modified even under URESA, and I therefore would remand for the sole purpose of permitting amendment of the judgment to include that amount. In other respects I would affirm the judgment of the district court.
LEVINE, J., concurs.
Paul H. Fraase, Asst. City Atty., Bismarck, for plaintiff and appellee.
Ralph A. Vinje of Vinje Law Firm, Bismarck, for defendant and appellant.
VANDE WALLE, Justice.
James Hoffner appealed from his conviction of driving with a blood-alcohol concentration of at least 0.10. We affirm.
On March 22, 1984, Hoffner was involved in a two-car accident. As a result of injuries received in the accident, he was taken to a hospital. While in the emergency room, an officer investigating the accident approached Hoffner. The officer told him that “he would probably—or, that he would be placed under arrest” and informed him that if he refused the blood test “he would probably lose his driver‘s license for a
Hoffner argues (1) that the court should overrule Abrahamson, wherein we held that
I
In Abrahamson we held that the implied-consent statute is inapplicable where an individual voluntarily consents to the taking of a blood specimen and thus makes admissible the results of the consensual blood test. Hoffner contends that Abrahamson was incorrectly decided because
“must be administered at the direction of a law enforcement officer only after placing the person, except persons mentioned in section 39-20-03 [i.e., any person who is dead, unconscious, or otherwise in a condition rendering him incapable of refusal], under arrest and informing that person that the person is or will be charged with the offense of driving or being in actual control of a vehicle upon the public highways while under the influence of intoxicating liquor, drugs, or a combination thereof.”
Section 39-20-01, N.D.C.C. [Emphasis added.]
In support of his argument that Abrahamson should be overruled, Hoffner claims that this court failed to analyze its reasons for deciding in Wanna v. Miller, 136 N.W.2d 563 (N.D. 1965), that
The concept of consent, or more accurately the relinquishment of one‘s rights, is long-standing and pervasive within our system of jurisprudence. It has been a part of our legal heritage from the time in which society recognized the existence of free will and individual rights. Two distinct manners of consent have been employed over the years to determine the validity of the alleged consent: voluntary consent, and the more stringent standard, a knowing and intelligent waiver. The voluntary-consent standard is applied in most situations, primarily as a practical consequence of the need for efficient and orderly administration of our system of justice. Schneckloth v. Bustamonte, 412 U.S. 218, 93 S.Ct. 2041, 36 L.Ed.2d 854 (1973). Nonetheless, there are other situations where the right to be
In the instant case, Hoffner attempts to place
II
Hoffner next argues that Abrahamson is not controlling because that case involved a prosecution in county court and
III
Hoffner‘s final argument is that the City of Bismarck did not demonstrate that Hoffner freely, knowingly, and voluntarily consented to waive his Fourth Amendment right against unreasonable search and seizure.4 We determined by dicta in Wanna, and reasserted in Abrahamson, that the standard for determining the validity of consent to the extraction of a blood specimen is whether the consent was given voluntarily. The reason for requiring consent and the standards employed in evaluating the validity of the consent were set forth in Abrahamson:
“Because the taking of a blood sample is a search, the police officer needs to be justified in his request by obtaining a search warrant or meeting an exception to the search-warrant requirement. See State v. Matthews, 216 N.W.2d 90 (N.D. 1974). One of the exceptions to the warrant requirement is that the person consent to the search. State v. Swenningson, 297 N.W.2d 405 (N.D. 1980).
“The Fourth Amendment requires that consent to a search be voluntary. Schneckloth v. Bustamonte, 412 U.S. 218, 93 S.Ct. 2041, 36 L.Ed.2d 854 (1973); State v. Page, 277 N.W.2d 112 (N.D. 1979). To determine what constitutes ‘voluntary consent’ we consider the totality of the circumstances. State v. Metzner, 244 N.W.2d 215 (N.D. 1976). In the instant case the police officer‘s statement may have led Abrahamson to mistakenly believe he would lose his driver‘s license if he refused to consent to the blood-alcohol test. Although the officer probably did not intentionally try to deceive Abrahamson, the result may have been the same. This misleading statement by the officer is one factor to be considered in determining the voluntariness of Abrahamson‘s consent.” Abrahamson, 328 N.W.2d at 216.
In the instant case, the lower court stated that “[i]t appears that Mr. Hoffner agreed to take the test just like Mr. Abrahamson did after being advised that he would lose his license if he didn‘t take it.” The defendant in Abrahamson:
“was fully conscious when he agreed to the taking of the blood sample. Although he was misinformed regarding the possible loss of his driver‘s license, Abrahamson did not testify that he would have refused the test but for the officer‘s statement. After considering the totality of the circumstances, we believe that the misleading statement made by the police officer alone is insufficient to vitiate Abrahamson‘s consent to the blood-alcohol test.” Abrahamson, 328 N.W.2d at 217.
It is apparent that the lower court in this case perceived a distinction between Hoffner‘s testimony as to the reason he took the test and testimony (which was not given) that he never would have taken it but for the officer‘s statement. The court held that “[b]ecause I can‘t distinguish this case from Abrahamson, I am denying the motion to suppress.” Implicit in this holding is the factual finding that despite Hoffner‘s testimony that it was the threat of losing his license for a year that caused him to submit to the blood test, Hoffner consented to the taking of the blood voluntarily. We
The judgment of conviction is affirmed.
ERICKSTAD, C.J., and MESCHKE and GIERKE, JJ., concur.
LEVINE, Justice (specially concurring).
As the scenario developed defendant was in fact arrested without reference to the blood test results and therefore would have lost his driver‘s license had he refused to take the blood test. There were therefore no misleading statements by the police officer. Had the police been apprised of the blood test results prior to making the arrest, I would agree with the defendant‘s position that his consent was involuntary. In my view, under the “totality of circumstances,” a consent obtained by ruse or deception, would not be voluntary if the defendant establishes he would not have consented but for his having been misled.
Because I find no such misleading statements in this case, I concur.
John P. Van Grinsven, III [argued], Asst. State‘s Atty., Minot, for plaintiff and appellee.
Teevens, Johnson, & Montgomery, Minot, for defendant and appellant; argued by Bruce Montgomery.
MESCHKE, Justice.
Mark Olson pled guilty to the crime of negligent homicide, in which alcohol was a contributing circumstance. On October 22, 1981, he was sentenced to five years imprisonment, with “[e]xecution of the last Three (3) years ... suspended for a period of Five (5) years of this date.” Conditions of the order of suspension required him to “undergo available medical or psychiatric treatment and counseling ... for alcohol and drug abuse” and ordered him not to “purchase, possess, or consume any alco-