[¶ 1] James Christian Bauer appeals from a criminal judgment entered upon his conditional plea of guilty to refusal to submit to a chemical test. Bauer pled guilty after the district court denied his motion to suppress and dismiss his charge of refusal to submit to a chemical test. Bauer argues the district court erred in denying his motion when it determined the use of post-arrest,
post-Miranda
silence did not violate Bauer’s constitutional rights
I
[¶ 2] In February 2014, Watford City Police Officer Dylan Bostic stopped Bauer for speeding at approximately 3:00 a.m., on Highway 85, near Watford City. During the stop, the officer noticed Bauer had slurred speech, watery and bloodshot eyes, poor balance and alcohol on his breath. The officer asked Bauer to submit to field sobriety testing, but Bauer declined. The officer read Bauer the North Dakota implied consent advisory and asked Bauer to submit to a preliminary breath test. Bauer agreed. The test showed a blood alcohol content over the legal limit for driving. The officer arrested Bauer for driving while under the influence and read Bauer his Miranda rights. The officer asked Bauer if he understood his rights, but Bauer remained silent. After transporting Bauer to the county jail, the officer again read Bauer the North Dakota implied consent advisory and asked Bauer if. he would submit to a blood draw at the hospital. Bauer did not answer. The officer left Bauer in the squad car to consider his options and upon return, again asked if Bauer would submit to a blood draw. Bauer remained silent. The officer told Bauer if he did not answer, his silence would be considered a refusal. Bauer did not respond. The officer cited Bauer for refusal to submit to onsite screening or chemical test.
[¶ 3] Bauer moved to dismiss the charge and, in the alternative, to suppress evidence and dismiss the charge, alleging the State’s use of Bauer’s post-arrest, post-Miranda silence as a refusal under N.D.C.C. § 39-08-01 violates his constitutional rights against self-incrimination, due process or the Fifth Amendment. The district court denied Bauer’s motion, finding Bauer’s argument failed because his silence was refusal by inaction. Bauer entered a conditional guilty plea to the charge of refusal to submit to onsite screening or chemical test, reserving his right to appeal the district court’s denial of the Fifth Amendment and due process claims. Bauer appeals.
II
[¶ 4] Our standard of review regarding a trial court’s decision to grant or deny a motion to suppress is well established.
“[T]his Court defers to the district court’s findings of fact and resolves conflicts in testimony in favor of affirmance. This Court will affirm a district court decision regarding a motion to suppress if there is sufficient competent evidence fairly capable of supporting the district court’s findings, and the decision is not contrary to the manifest weight of the evidence. Questions of law are fully reviewable on appeal, and whether a finding of fact meets a legal standard is a question of law.”
State v. Morin,
III
[¶ 5] Bauer argues his charge of refusal to submit to onsite screening or chemical test under N.D.C.C. § 39-08-01(l)(e)(2) is unconstitutional, as applied, because the use of his silence as a refusal under N.D.C.C. § 39-08-01 violates his Fifth Amendment protection against self-incrimination and is contrary to the
Miranda
protections.
Miranda v. Arizona,
[¶ 6] Under N.D.C.C. § 39-08-01(l)(e)(2):
“1. A person may not drive or be in actual physical control of any vehicle upon a highway or upon public or private areas to which the public has a right of access for vehicular use in this state if any of the following apply:
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“e. That individual refuses to submit to any of the following:
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“(2) A chemical test, or tests, of the individual’s blood, breath, or urine to determine the alcohol concentration or presence of other drugs, or combination thereof, in the individual’s blood, breath, or urine, at the direction of a law enforcement officer under section 39 — 20—01[.]”
[¶ 7] “Section 39-20-01, N.D.C.C., sets forth the implied consent requirements for motor vehicle drivers in general.”
State v. Birchfield,
[¶ 8] In State v. Beaton, this Court explained:
“In Miranda v. Arizona,384 U.S. 436 , 444 [86 S.Ct. 1602 ,16 L.Ed.2d 694 ] (1966), the United States Supreme Court held that a defendant’s statements during custodial interrogation were inadmissible in criminal proceedings unless procedural safeguards had been employed to secure the privilege against self-incrimination afforded by the Fifth Amendment to the United States Constitution:
“ ‘[T]he prosecution may not use statements, whether exculpatory or inculpatory, stemming from custodial interrogation of the defendant unless it demonstrates the use of procedural safeguards effective to secure the privilege against self-incrimination. By custodial interrogation, we mean questioning initiated by law enforcement officers after a person has been taken into custody or otherwise deprived of his freedom of action in any significant way. As for the procedural safeguards to be employed, unless other fully effective means are devised to inform accused persons of their right of silence and to assure a continuous opportunity to exercise it, the following measures are required. Pri- or to any questioning, the person must be warned that he has a right to remain silent, that any statement he does make may be used as evidence against him, and that he has a right to the presence of an attorney, either retained or appointed.’ ”
[¶ 9] The United States Supreme Court in
South Dakota v. Neville,
ex
[¶ 10], In contrast to
Neville,
Bauer points to
Doyle v. Ohio,
which explains, “[W]hen a person under arrest is informed, as
Miranda
requires, that he may remain silent, ... it seems to me that it does not comport with due process to permit the prosecution during the trial to call attention to his silence at the time of arrest.”
[¶ 11] Here, the officer informed Bauer it would be considered a refusal if he did not answer. Bauer remained silent. Bauer argues no evidence exists that demonstrates refusal other than his silence. Bauer notes that he was not taken to a facility, such as a hospital, or other circumstance or location where some physical or non-verbal manifestation of refusal could have been observed and that he was not given an opportunity to demonstrate refusal. However, in
Gardner v. N.D. Dep’t of Transp.,
we explained, “[F]ailure to submit to a test, whether by stubborn silence or by a negative answer, can be a refusal. A physical failure to cooperate may also amount to a refusal.”
[¶ 12] Bauer argues the issuance of Miranda warnings and an implied consent advisory provides contradicting admonitions — the right to remain silence and the notification that silence or refusal could be used against him — which could “trick” or confuse the defendant. The United States Supreme Court considered these contradictions in Neville:
“Moreover, the Miranda warnings emphasize the dangers of choosing to speak (‘whatever you say can and will be used as evidence against you in court’), but give no warning of adverse consequences from choosing to remain silent. This imbalance in the delivery of Miranda warnings, we recognized in Doyle, implicitly assures the suspect that his silence will not be used against him. The warnings challenged here, by contrast, contained no such misleading implicit assurances as to the relative consequences of his choice. The officers explained that, if respondent chose to submit to the test, he had the right to know the results and could choose to take an additional test by a person chosen by him. The officers did not specifically warn respondent that the test results could be used against him at trial. Explaining the consequences of the other option, the officers specifically warned respondent that failure to take the test could lead to loss of driving privileges for one year. It is true the officers did not inform respondent of the further consequence, that evidence of refusal could be used against him in court, but we think it unrealistic to say that the warnings given .here implicitly assure a suspect that no consequences other than those mentioned will occur. Importantly, the warning that he could lose his driver’s license made it clear that refusing the test was not a ‘safe harbor,’ free of adverse consequences.
“While the State did not actually warn respondent that the test results could be used against him, we hold that such a failure to warn was not the sort of implicit promise to forego use of evidence that would unfairly ‘trick’ respondent if the evidence were later offered against him at trial. We therefore conclude that the use of evidence of refusal after these warnings comported with the fundamental fairness required by Due Process.”
[¶ 13] We addressed this issue in State v. Fields, explaining:
“[O]ur holding here does not mean that an individual may assert the right to remain silent when requested by an officer to submit to a blood-alcohol test, pursuant to Chapter 39-20, N.D.C.C., because the Fifth Amendment privilege against self-incrimination does not apply under these circumstances. If the person allows the test, to which he has already impliedly consented under Section 39-20-01, N.D.C.C., the results are not ‘testimonial’ and may be admitted into evidence. Schmerber v. [California],384 U.S. 757 [86 S.Ct. 1826 ,16 L.Ed.2d 908 ] (1966); State v. Miller,146 N.W.2d 159 (N.D.1966). Thus there is no impingement of Fifth Amendment rights in requiring a person to respond to an officer’s request to submit to a blood-alcohol test.
“Because an arrested person does not have the constitutional right to remain silent when asked whether or not he will submit to a blood-alcohol test, the officer, if he gives the Miranda warnings prior to asking the person to take the test, should inform the person that if he refuses to take the test, whether by silence or negative answer, his license is subject to suspension. This procedure may prevent the confusion that could result where a person is informed of his Miranda rights and then is asked whether or not he will submit to a blood test. See generally Agnew v. Hjelle,216 N.W.2d 291 (N.D.1974).”
[¶ 14] Bauer argues Fields is distinguishable because “[i]n Fields, the Defendant agreed verbally to submit to a chemical test after having admitted to driving a motor vehicle involved in an accident. He had not yet been Mirandized when the blood test was requested by law enforcement or when he admitted to driving. Fields never invoked his right to silence, with or without the Miranda warning, and the State was not attempting to use silence as evidence against Fields.” Bauer also argues Fields is dicta and should not be followed here. He argues Fields involved suspension of a license, not criminal charges. The North Dakota Legislature criminalized refusal in 2013. Bauer claims the consequences discussed in Fields and the criminal consequences discussed here are vastly different and, therefore, the protections also should be different.
IV
[¶ 16] Use of Bauer’s silence as a refusal under N.D.C.C. § 39-08-01 is not a violation of his Fifth Amendment protection against self-incrimination, nor contrary to the Miranda protections when coupled with the North Dakota implied consent advisory. We affirm the district court order denying Bauer’s motion to dismiss, or in the alternative, suppress evidence and the criminal judgment.