*1 already addressed another section of the FAIRGO,
code.... CITY OF Plaintiff Appellant, Stenehjem point “Another Senator wanted session, to stress: Last was a bill v.
that made it a criminal offense have THOMPSON, William Noble in a room. alcohol dorm It seemed like a Appellee. Defendant and good first, every nearly housing idea at but officer, etc. universities came in FARGO, CITY OF Plaintiff that, please and said don’t we do Appellant, programs use, etc.; counseling, we have v. we don’t want this criminal offense to be Timothy DORNHEIM, Duane obligated tied into this we’re where to call Appellee. Defendant and dealing state’s instead of the issue ourselves. FARGO, CITY OF Plaintiff (above) Stenehjem “Senator said that this Appellant, ties into and that he doesn’t want to people trying do that to all the who are BOMMERSBACH, Charles Herman problem way.” handle the in another Appellee. Defendant and Standing Minutes, 1991, Senate Committee hearing Judiciary before the Committee on FARGO, CITY OF Plaintiff HB March Appellant, Judiciary
The Senate Committee recom- pass,” mended bill “do not and Senator Christopher FRANEK, Michael Stenehjem carried the committee’s recom- Appellee. Defendant and mendation floor the Senate. The Cr. Nos. 940010 to 940012. Senate, however, bill, approved the and it became law. Supreme Court North Dakota. legislative history The 1989 does not re- Aug. 24, 1994. “decriminalize,” flect an intent to but rather gap close legisla- the law. The 1991 history tive reflects clear intent make criminal, therefore,
conduct “child,”
a “delinquent § act” under N.D.C.C. 27-20-
02(3). join majority the result of the opinion.
579 Prosecutor, Gaughan, City Far- Thomas J. go, plaintiff appellant. for Office, Olson, L. Nelson Law Robin Fargo, appellees. defendants SANDSTROM, Justice. Stutlien, Fargo v. In (N.D.1993), illegal a court-or- we held
738 mandatory pe- minimum procedure for dered ny all statutory riods of under the was lost’ as a result of the detention deprivations of complains.” influence and actual control arres- which he State tees. But we reversed dismissal crimi- 322 N.C. S.E.2d (1988) Dietz, prosecutions against (quoting nal defendants State N.C. *3 (1976)). cases, 357, charged 223 concluding in those S.E.2d 360 As we absent noted 744, periods bearing question “evidence that these minimum of de- Stutlien at also on the actually prejudiced prejudice driving tention the of actual defendants’ to under the influ right present physical fair or to a defense and have a ence actual control arrestees is trial, charges right of statutory § the trial court’s dismissal the the under N.D.C.C. 39-20- speculative premature.” 02 to a opportunity and Stutlien reasonable to obtain an separate evidentiary additional, hearings independent After blood-alcohol test. remand, Messner, 236, the trial See State 481 found William v. N.W.2d 240 Dornheim, Thompson, (N.D.1992); Dressler, Timothy Charles State v. 433 N.W.2d Bommersbaeh, 549, Likewise, Christopher and (N.D.Ct.App.1988). Franek had 550 under 29-05-20, satisfactorily right § shown their to a driving fair trial N.D.C.C. under in the detentions, actually prejudiced by physical their fluence or actual control arrestees charges pending against statutory and the a right meaningfully dismissed con City Fargo them. appeals, claiming attorney. City of sult with an See Mandan of Jewett, (N.D.1994) 640, of none these defendants established actual 517 N.W.2d 641 prejudice. (right applies also arrestee before decides testing); whether to submit to blood-alcohol We hold is sufficient evi- Highway Bickler v. North Dakota State support dence to trial findings the court’s of Commissioner, 146, (N.D. 423 N.W.2d 147 prejudice Thompson and Bommers- 1988) (same); Highway Kuntz v. State Com bach, findings contrary and the are not the missioner, (N.D.1987) 285, 405 N.W.2d 287 weight of the evidence. affirm We (same). charges Thomp- of dismissal However, son and Bommersbaeh. we hold cases, City In all of argues these there is insufficient evidence to opinion testimony sobriety is about immateri findings court’s of actual prejudice al of actual because Franek, prejudice to Dornheim and percent by an alcohol of concentration .10 findings weight are to the manifest per is a se violation of the We law. of the evidence. We reverse the dismissal reject argument this because a traffic citation charges Dornheim and Franek alleging driving under influence or actual proceedings. and remand for further physical per charges control both a se viola general driving tion as well as a under jurisdiction The trial court had under Art. § influence violation under 39-08- VI, 1, N.D.C.C. Const., § §§ N.D. 27- N.D.C.C. 01(1). City Bjelland, Minot v. 452 N.W.2d 07.1-17(3); 27-07.1-18; 40-18-15.1; 40- 348, (N.D.1990); Keegan, 349 State v. 493 jurisdiction 18-19. This Court has under 219, (N.D.Ct.App.1992). N.W.2d 220 Conse VI, 6, Const., § Art. N.D. and N.D.C.C. quently, the results of a 29-28-07(1). blood-alcohol test § appeals un- timely were necessary not are to sustain a 4(b), N.D.R.App.P. der Rule physical the influence or an actual control Pollack, 119, conviction. State v. (N.D.1990); 122 Whitney, State v. 377 prejudice, To establish actual a defen (N.D.1985). 132, Opinion N.W.2d 133 testi “factually liberty dant must link loss her mony sobriety at a critical time is there any specific prejudice right to her defending fore relevant a Erdelt, fair trial.” Jamestown v. 513 or the influence an actual (N.D.1994). words, N.W.2d 85 In other a charge. defendant “must show that or ‘lost evidence testimony helpful Finally, “impairment would have been of one’s defense is defense, that the evidence would have been the most difficult form of ... significant, and that the or prove evidence testimo- exculpatory because time’s erosion of
581 Thompson rarely hospital. ‘can be testified he testimony evidence ” — States, right told he to an before U.S. Doggett United shown.’ -, 2686, 2692-2693, -, taking the test and informed 112 S.Ct. (1992) (quoting independent Barker v. Win to an test. He L.Ed.2d 520 signed promise appear. 407 U.S. 92 S.Ct. go, bail (1972)). Although a Thompson defendant L.Ed.2d was taken to Centre Detox preju heavy burden to show approximately carries 3:20 a.m. The admission note trial, this to his to fair burden dice on the Centre Client Information Doggett; See Thompson kept, not insurmountable. Form was “well states at 565. compliant. S.E.2d healthyf,] co-operative, Clothes signed appear, promise
clean].]” He *4 “machine,” into a was told would blew and he II length a time stay have to “for certain of findings in of fact A trial court’s again.” I’d released before be a criminal case preliminary proceedings of if, in not be reversed after conflicts will Thompson, According employee to an in affir- testimony are resolved favor of and Centre Detox called his wife informed mance, is sufficient evidence Thompson Thompson’s of her whereabouts. fairly capable supporting the trial court’s attorney did not ask to have an called findings, not and the decision is Thompson quite him. he “asked testified City weight of the manifest the evidence. phone “no few times” to use was told Risser, 462, N.W.2d 464 Forks v. 512 Grand testified, Thompson phone.” can one use (N.D.1994) test); (request for alcohol second upon noticing being his actions were entered 107, (N.D. Murray, v. 510 109 N.W.2d State log, he ask in a was hesitant to Centre 1994) (voluntariness confession); State attorney for employees to call an him or to (rea (N.D.1992) Nelson, 600, 488 N.W.2d attorney “I his to call an because ask wife vehicle); suspicion stop State sonable something they thought ... it was that (N.D.1991) Everson, 695, 704 on_” against later might ... me hold (consent search). not a de We do conduct change, Thompson was allowed After shift Discoe, 334 N.W.2d review. State v. novo him he employer call his at 8 a.m. tell (N.D.1983). evi evaluate the We finally Thompson at work. would be see, presented to on the stan dence based p.m. from Centre Detox 2:10 released review, findings of supports if it dard of opportu- if had an Thompson he had testified Risser; Nelson; Murray; Ever- fact. See conversations, telephone he nity private son; Discoe. wife, Mends, and a talked to his would have lawyer for advice.
III Thompson held The trial court found court contends the trial erred and, having for 11 hours at Centre Detox finding Thompson Bommersbach were could use the by personnel told he been by actually prejudiced periods of deten- their effectively prohibited from telephone, was tion. contacting attorney, who “would have an [Thompson] con- position in a been advise A case,” wife, cerning or preparation his his charges The trial court dismissed two his “could have come to Centre secure who separate Thompson arising inci- from during the critical and observe him release dents. Al- shortly his period of time after arrest.” to use though Thompson was allowed a.m., his five hours after at 8 this was August phone At 2:35 a.m. on especially were circumstances arrest. These Thompson was arrested for said, Thomp- because significant, in his the court police asleep him after found in the appearance as noted parking Thompson son’s “outward lot. vehicle impairment.” did not indicate taken at Centre records which was consented to blood test Thompson’s “right found been or The trial court released been allowed use of a tele- actually prejudiced... phone, fair an trial has been he would have contacted possible and his to be friends witnesses his is sufficient There evi case. The Centre Detox Client Information finding the trial court’s dence to Thompson’s Form were states “clothes soiled say prejudice and we cannot the trial apparently [Thompson] working, finding court’s is polite, coherant co-operative, [sic] agree of the evidence. We cannot with the [Thompson] own, was able to walk his City’s prejudice argument Thompson without assistance.” was released “pure speculation based on and surmise.” at 9:55 a.m. accepted Thompson’s The trial court testimo ny telephone use of a during again was denied Thompson The trial court found morning early following hours actually arrest prejudiced by his detention. The accepted detention. Thompson court found had been detained for Thompson’s what hours, statements of he would more than seven and was not allowed fact. adopt have done as While we decline to lawyer use a to contact or per requiring se rule dismissal pick up wife to him or to secure witnesses to when an arrestee is use of a shortly denied tele view him after the arrest. The trial *5 phone, present see at more was Stutlien accepted Thompson’s court statements of Thompson ed here. There evidence lacked what he would have fact. done as impairment signs outward of alcohol when Thompson given opportunity was not an to permitted admitted Centre to Detox. This telephone. use The trial court’s the trial court to draw a reasonable inference Thompson suffered actual from his wife, friends, Thompson’s contact with or an illegal by supported detention is sufficient attorney would have resulted evidence evidence and is not Thompson’s gener beneficial to defense. See weight of gener- See evidence. Knoll, ally B69 S.E.2d at 562. We conclude ally 369 S.E.2d at The 562-563. trial clearly the trial court did not err in dismiss dismissing court did err in driving ing physical charge against the actual charge under the influence against Thomp- Thompson. supported by The decision is son. evidence, sufficient and is not the manifest of the evidence.
B Fargo Bommersbach was arrested for At a.m. on September 1:19 control at 2:21 a.m. on June Thompson Fargo was arrested in for 1992. Bommersbach was taken to a hos- influence. pital test, He taken to given was a a blood but was not hospital a According for blood test. right to informed independent of his to a second Thompson, arresting officer did not in- posted promise test. He bail signed to right independent form him his appear. to an test then transported He was to Centre or speak his lawyer. posted to He Detox at a.m. According 2:50 to Bommers- signed promise bach, bail and appear. to he asked to telephone make a call to Thompson was taken to Centre Detox at his sister have lawyer “to her contact Thompson signed a.m. promise appear get to together,” some witnesses but was not and, test, taking after a breath was told he allowed so. person to do who refused would to remain for a certain telephone access to the told Bommersbach he period of time. A employee spend Centre Detox many my “to however hours until Thompson’s called wife told her where blood level was down.” Bommersbach was long he was and how hours, he would be held held at there. Centre Detox for more than Thompson testified he being was not allowed to use p.m. released 5:15 The Centre De- telephone. At 9 a.m. a Centre tox Detox Client Information Form states Bom- employee Thompson’s mersbach, called admission, “clean, home to upon secure was Thompson a ride for him. healthy, if semi-cooperative, testified he had ... [and] coher- A ent,” “angry ... refused [and] but was complied.” upon intake —later take B.A.C. Dornheim arrested for met Bommersbach The trial court found the influence at 12:55 a.m. on showing actually preju- he was his burden September When Domheim by trial found detention. The court diced his test, hospital re taken to a blood he of his advised Bommersbach attorney. an quested talk to Domheim make and was not allowed to a second test attorney. an was allowed to call The attor found, any telephone calls. The trial court hospital ney “private came and had a “to upon request contact Bommersbach’s Afterward, with Domheim. conversation” an family to come for him or contact Dornheim refused to consent to the blood- attomey[,] be was advised that this would he jail, Dornheim was taken to alcohol test. stay until his no use he had to at Centre as he allowed to call his boss who where certain as level was down to a level blood came and bail for him. Dornheim city’s policy.” The trial required by the Detox, was then taken to Centre and was also found Bommersbach asked told he “had to sit 12 hours” because arresting if he a mem- officer could contact According to “refused” the test. Domheim family, making of his but instead ber he was not allowed meet with his available, Bom- the officer told acknowledged Detox. Domheim Centre care that at mersbach “he could take request make a he was never denied a Centre_” court found Bom- call or phone at Centre Detox elsewhere. come to Centre mersbaeh’s sister could have phone or to He did not ask to make a call him his release and observe Detox secure independent an test while take blood-alcohol shortly during critical time after this being After held at Centre at Centre Detox. arrest, op- Bommersbach was deified an hours, eight or Dornheim seven *6 lawyer, contact “who would portunity to by corpus ob writ of habeas was released position [Bommers- been in a to advise have by attorney. if Dornheim claimed tained his independent test concerning a second baeh] from had released sooner Centre he been gathering preparation in other evidence people” he have with other could “met All of have of his this evidence would case. his have been to observe who would able significant helpful in [Bommers- been “sobriety.” “demeanor” and bach’s] defense.” a “fur- The trial court found the denial of given access to Bommersbach not attorney at Centre ther conference” with his attempt as- to seek advice and by ... to be observed Detox and his “wish generally Messner at sistance. See his testified as to who could have others indicate Bommers- Centre Detox records signifi- have impairment,” which “would been relatively upon unimpaired condition baeh’s defense,” actually prejudiced in cant his admission, contact permitting an inference these right to a fair trial. Under Dornheim’s resulted in evidence with others would have finding circumstances, the trial erred in court con- helpful to Bommersbaeh’s defense. We dismissal of support finding court’s Bommersbach clude charge against Dornheim. is actually prejudiced by his detention by competent evidence supported sufficient consult his with Dornheim was allowed weight is not the manifest to take attorney deciding whether before generally the evidence. See He not denied access test. blood-alcohol trial court did not S.E.2d 562-563. The De- telephone while detained Centre to a physical dismissing in the actual err an Although he was denied he claims tox. charge Bommersbach. his personally consult with opportunity to Detox, attorney Domheim at Centre while
IV attorney request to meet with his did not link lack failed to this again, and has trial court erred contends the any type meeting actually additional finding and Franek were Domheim Moreover, although he he claims periods prejudice. by their detention. prejudiced by being ob- Franek did not recall if he asked to talk prejudiced unable to be friends, by independent lawyer. is no served He testified he was told of his support an inference observance right independent evidence to to a test. second Franek by would have been beneficial to friends talk parents he wanted to to his “[t]o said see attorney Dornheim’s Dornheim’s defense. they According help if could me.” to Fra- immediately talk proceeded to could have nek, prejudiced by he felt the detention be- just him his ar- those who had seen before myself get “I cause could out there to event, by any rest. In Dornheim was viewed go gather vital evidence.” He said he would boss, jail at the before his who bail “somebody have had drive back to the acci- Detox, being taken Centre Dornheim scene, people dent talk to the that hit.” He testify. boss is available to We testified his if further he had testified been released conclude there is insufficient evi- promptly par- or been allowed to talk to his finding dence to the trial court’s ents, lawyer he would have called a or had actually prejudiced by his de- Dornheim was lawyer, parents his call a would who have trial court’s tention. The right him of told his second test. evidence, of the and it prejudice. The trial court found actual dismissing erred in op- found Franek was denied an charge against influence Dornheim. portunity family to contact his “who could B come to Centre secure his release Franek was 19 arrested when was during period and observe him the critical influence at a.m. 7:30 shortly time after arrest....” The court April being after involved reasoned Franek would have been able to Fargo. four-vehicle accident in Franek attorney, an contact “a which he was ” rear-ended number of vehicles. Franek by denied officials.... According Centre refused treatment the ambulance crew court, to the an could have advised “was because he more worried about about Franek to a second test and people myself.” other than I was about Fra- gather helped evidence which would have acknowledged nek he had talked to the other significant helpful been in his defense. persons police involved the accident before There is insufficient evidence to acknowledged furnishing arrived. He also *7 finding the trial court’s Franek was police to fill in information re the accident actually prejudiced by his detention. The port. police report accident contained trial court’s is to the names, numbers, mani- addresses, telephone the spoke fest of the evidence. Franek companies and of in people insurance the passengers the drivers and of the other volved in the accident and Franek had access in vehicles involved the and to it. of accident has people Most the at the accident always had scene access their names and ad- had left before Franek and arrest the ing police which in hospital, officer went to dresses were entered the the where Fra- report. We nek submitted to a accident see no merit Fra- blood-alcohol test. Fra- claim police any nek was then taken the nek’s denied station access to relating where he was booked. He had crucial evidence access to the accident. station, Many at the but did not call nonlaw enforcement witnesses can tes- anyone. signed He prom tify bail and as to their observations of Franek near appear. ise to Franek then transported Although the time of his arrest. the trial per Centre Detox. He testified he asked court found Franek denied attorney, sonnel when he would be released be contact an the record reflects he so, get gather cause he “wanted to out no do made effort to nor it does reflect An employee evidence.” at Centre Detox the likelihood it would have benefited him. parents they record, called his for him and “that’s all On this we conclude the trial court they’d do.” prejudice said Franek did not in finding ask Centre erred actual and in dis- personnel parents missing driving contact under the influence lawyer. p.m. charge against Franek was released at 4 Franek. “arbitrary liberty encroach- right to without
V deprivations” or “unfair or mistaken ment” the dismissals Accordingly, we affirm protected than one’s to the use and less physical control the actual possession property? against Thompson and charges influence charge against physical control unhappy, unprec- heralds an This case reverse the dismissals Bommersbach. We edented, additional burden on unfortunate charges the influence liberty. illegally deprived of their defendants and Franek and remand against Dornheim only they prove prejudice Not must proceedings. further they guilty party passive, while the remains majority’s prove must it to this court. WALLE, C.J., and MESCHKE VANDE novo review of the facts and inferences de JJ., NEUMANN, concur. customary standard of turns our deferential LEVINE, J., concurs and dissents. judge of facts on its head. The review weigh facts. That is is abler than we to Justice, LEVINE, concurring and dissent- him do it. In his business and we should let ing. view, my error and I he made no clear so of the trial court’s orders I would affirm all would affirm. therefore, I dissent from of dismissal and dismissing Domheim’s reversal of the orders affir- Franek’s cases and concur
mance of the other dismissals. Stutlien, In (N.D.1993), I 746-47 dissented from illegally
holding that incarcerated defendants prejudice arising from to show actual then, imprisonment. illegal their believed BOLINSKE, Petitioner, Robert V. now, justice system of that not as I do that a then, only illegal incarcerations but condones grievous injury, puts the adding raw insult to Secretary State, JAEGER, Alvin A. proof illegal that incar- to their their victims Dakota, of North State system damage, them is a that is ceration did Respondent. fixing. I also “broke” and need of serious State, least, that, very suggested at the No. 940259. wrongdoing, should having committed the to show that its misconduct have the burden North Dakota. Supreme Court of possibility held no reasonable Aug. illegal imprisonment. the victims of the *8 Furthermore, pro- in the context of due
cess, prejudice is not confined the issue of adequately present a defendant can
whether Shevin, Fuentes v. 407 U.S.
a defense.
(1972).
Due
process not protect [a is to
purpose, particularly, more possession property
person’s] use and arbitrary minimize encroachment —to substantively deprivations unfair or mistaken ” Dan- States v. James property.’ United — U.S.-,- Property, Real
iel Good
(1993), 126 L.Ed.2d S.Ct. 80-81, Fuentes,
(quoting 407 U.S. at S.Ct. 1994). process due Can it be that one’s