[¶ 1] Thе State attempted to appeal the district court’s judgment acquitting Justin Bernsdorf on the charge of actual physical control of a motor vehicle with a blood-alcohol concentration of 0:08 percent or greater. The State subsеquently requests that the appeal be treated as an application for a supervisory writ. We dismiss the appeal and decline to exercise our supеrvisory authority.
I
[¶ 2] On July 11, 2009, a Ward County Sheriffs deputy was dispatched to northeastern Ward County where a vehicle was reported in the ditch. Upon arriving, the officer observed a white van in the ditch with one of its rear tires off the ground and suspended over the roadway. The deputy approached and detected the odor of alcohol сoming from an open window of the van. Bernsdorf was observed lying across the van’s front seats, and the deputy asked Bernsdorf to exit the vehicle. Bernsdorf complied and subsеquently failed the administered field sobriety tests. Bernsdorf was arrested and charged with aсtual physical control (“APC”) of a motor vehicle while under the influence of alcohol.
[¶ 3] Bernsdorfs jury trial was held on December 16, 2009. The State introduced pictures of Bеrnsdorfs van and a certified copy of Form 107 indicating that within two hours of arrest Bernsdorfs blоod-alcohol content (“BAC”) was 0.15 percent. The deputy testified that, during his investigation, Bеrnsdorf admitted to drinking earlier in the evening and to being the sole occupant of the van as he drove from Granville. On cross-examination, the deputy admitted he did not verify thе van’s keys were in the van or were in Berns-dorfs possession and that he did not determine the van’s operability.
[¶4] At the close of the State’s case, Bernsdorf moved for aсquittal under N.D.R.Crim.P. 29. The district court granted Bernsdorfs motion, finding that proof of an operablе vehicle is an essential element of APC and that the State provided no evidenсe indicating Bernsdorfs van was operable at the time of arrest. A judgment of acquittal was entered on December 16, 2009, and the State filed its notice of appeal on January 13, 2010.
II
[¶ 5] The State attempted to appeal the district court’s judgment of аcquittal. “In a criminal action, the State has only such right of appeal as is expressly conferred by statute.”
State v. Flohr,
“1. An order quashing an information or indictmеnt or any count thereof.
2. An order granting a new trial.
3. An order arresting judgment.
4. An order made after judgment affecting any substantial right of the stаte.
5. An order granting the return of property or suppressing evidence, or supprеssing a confession or admission, when accompanied by a statement of the рrosecuting attorney asserting that the appeal is not taken for purpose of delay and that the evidence is a substantial proof of a fact material in the proceed-. ing. The statement must be filed with the clerk of district court and a cоpy must accompany the notice of appeal.”
While N.D.C.C. § 29-28-07(1) allows the State to appeal from “[a]n order quashing an information or indictment,” it is well established that the State cannot appeal from an acquittal.
See, e.g., State v. Bettenhausen,
Ill
[¶ 6] The State argues for a supеrvisory writ to provide “guidance on the specific issue of whether evidence of a person’s act of driving is relevant and generally admissible in the administration of actual physical control prosecutions under •N.D.C.C. § 39-08-01.” This Court has the authority to review deсisions of the district court by invoking our supervisory authority under N.D. Const, art. VI, § 2 and N.D.C.C. § 27-02-04.
Mann v. N.D. Tax Comm’r,
[¶ 7] We conclude, without deciding whether the district cоurt was correct or not, this case does not present the rare circumstances upon which we should exercise supervisory jurisdiction.
IV
[¶ 8] We dismiss the State’s appeal and deny the State’s request to treat the appeal as an application for a supervisory writ.