Lead Opinion
[¶ 1] The State appeals from the district court’s order granting Kyle Boehm’s motion to suppress blood test results. We reverse and remand for further proceedings.
I
[¶ 2] On September 1, 2013, at approximately 12:39 a.m., -a Morton county deputy was traveling east when he observed a vehicle traveling west on the same road accelerate past him at a high rate of speed. The deputy’s radar detected the vehicle was traveling at 44 m.p.h. in a 25 m.p.h. zone. The deputy initiated a traffic stop. The deputy observed the driver, identified as Boehm, had red, bloodshot, watery eyes. The deputy detected an odor of alcohol coming from the vehicle. Boehm admitted consuming four beers. The deputy conducted field sobriety tests on Boehm. Boehm passed the alphabet test and counting backwards test but failed the horizontal gaze nystagmus (“HGN”) test. The deputy advised Boehm of the North Dakota implied consent law, asked if Boehm would submit to a preliminary breath test, and Boehm agreed to submit. The result of Boehm’s preliminary breath test was .114 percent. At approximately 12:48 a.m., the deputy arrested Boehm for driving under the influence (“DUI”). The deputy again advised Boehm of the North Dakota implied consent law, asked if
[¶ 3] On October 16, 2013, Boehm moved to suppress the results of the blood test and submitted a brief in support. Boehm argued the blood test “was a search conducted without a search warrant and without voluntary and freely given consent,” and the blood test “was drawn in an unreasonable manner” in violation of state and federal constitutional protections. Boehm also argued North Dakota’s implied consent law violated Missouri v. McNeely, — U.S.-,
From the Court[’]s perspective it appears the officer relied basically on the HGN test to determine [Boehm] was impaired. This Court is not comfortable using the HGN test as a sole vehicle for determining probable cause and quite frankly would not allow the HGN into evidence at trial were there not other supporting tests available at trial.
The district court did not address the vol-untariness of Boehm’s consent to the blood test or the reasonableness of the blood test. The State appeals.
[¶ 4] On appeal, the State argues: (1) its appeal should be considered because the State has demonstrated the evidence suppressed is substantial proof of a fact material to the case; (2) the district court erred in finding the deputy did not have probable cause to arrest Boehm for DUI; and (3) the blood test did not violate Boehm’s rights and the blood test was completed in a proper environment.
[¶ 5] On appeal, Boehm argues the suppression is required because the blood draw was unreasonable under state and federal constitutional protections. Boehm claims there was no voluntary consent, implied consent is not a valid exception to the warrant requirement, and the blood test being conducted in a non-medical environment is unreasonable.
II
[¶ 6] Section 29-28-07, N.D.C.C., strictly limits the prosecution’s right to appeal in a criminal case. State v. Emil,
[¶ 7] On January 9, 2014, the State filed its notice of appeal with a statement of the prosecuting attorney, under N.D.C.C. § 29-28-07(5). The prosecuting attorney asserted in the statement that to prove Boehm was driving under the influence, in violation of N.D.C.C. § 39-08-01, the blood test result is “critical evidence,”, and it is impossible to proceed without that evidence. The prosecuting attorney’s statements are more than simply paraphrasing the requirements of N.D.C.C. § 29-28-07(5) and provided adequate explanation of the relevance of the suppressed evidence. In addition, the record clearly demonstrates the relevance of the suppressed evidence.
Ill
[¶ 8] The applicable standard of review of a district court’s decision to grant or deny a motion to suppress evidence is well established.
A trial court’s findings of fact in preliminary proceedings of a criminal case will not be reversed if, after the conflicts in the testimony are resolved in favor of affirmance, there is sufficient competent evidence fairly capable of supporting the trial court’s findings, and the decision is not contrary to the manifest weight of the evidence. We do not conduct a de novo review. We evaluate the evidence presented to see, based on the standard of review, if it supports the findings of fact.
State v. Whitman,
[¶ 9] This Court merely reviews findings of fact; it does not make its own findings of fact. Whitman,
IV
[¶ 10] The district court’s analysis is flawed from the outset, as the district court appears to be applying a probable cause standard to a preliminary
[¶ 11] When determining whether an officer had probable cause to arrest, this Court reviews the facts and circumstances known by the officer and applies a totality-of-the-circumstances standard. State v. Berger,
[¶ 12] In Moran, this Court explained the two-part test an officer must meet in order to have probable cause to arrest a person for driving under the influence.
In order to arrest a driver for driving under the influence, the law enforcement officer first must observe some signs of impairment, physical or mental. Further, the law enforcement officer must have reason to believe the driver’s impairment is caused by alcohol. Both elements — impairment and indication of alcohol consumption — are necessary to establish probable cause to arrest for driving under the influence.
Moran,
[¶ 13] Relevant factors in determining probable cause to arrest a person for DUI include the detection of the odor of alcohol, observation of signs of impairment, the person’s own words, and failure of one or more field sobriety tests. See Grove,
[¶ 14] In Kahl, probable cause existed when the law enforcement officer “detected an odor of alcohol coming from Kahl, Kahl admitted drinking five or six beers, and Kahl failed to complete the ‘one-leg-stand test,’ stating he ‘didn’t think anybody could do the test in his condition.’ ” Id. at ¶ 15. Similarly, here, the deputy detected an odor of alcohol, Boehm admitted drinking four beers, and Boehm failed the HGN test.
[¶ 15] In Brewer v. Ziegler,
[¶ 16] The district court explained “[f|rom the Court[’]s perspective it appears the officer relied basically on the HGN test to determine [Boehm] was impaired. This Court is not comfortable using the HGN test as a sole vehicle for determining probable cause and quite frankly would not allow the HGN into evidence at trial were there not other supporting tests available at trial.” The district court fails to consider the deputy relied on Boehm’s failure of the HGN test in conjunction with (1) the odor of alcohol emanating from the vehicle, (2) Boehm’s red, bloodshot, watery eyes, and (3) Boehm’s admission of consuming four beers. Even without considering the results of the preliminary breath test, for which the voluntariness of the consent is at issue, under the totality of the circumstances, the evidence in the record demonstrates the deputy had probable cause to arrest Boehm.
V
[¶ 17] In his motion to suppress evidence and brief in support, Boehm argued his consent to the blood test was coerced and involuntary. The district court did not decide the issue. The voluntariness of Boehm’s consent is an issue of fact to be determined based on the totality of the circumstances. The record is limited to the incident report because there was no evidentiary hearing and the district court made no findings regarding the voluntariness of Boehm’s consent.
[¶ 18] The U.S. Const, amend. IV and N.D. Const, art. I, § 8 prohibit unreasonable searches and seizures. State v. Smith,
“Warrantless searches are unreasonable unless they fall within one of the recognized exceptions to the warrant requirement. Consent is one exception to the warrant requirement. To be effective, consent must be voluntarily given under the totality of the circumstances and must not be coerced by explicit or implicit means or by implied threat or covert force.”
Smith, at ¶ 7 (quoting McCoy, at ¶ 10). The State bears the burden to show that a warrantless search falls within an exception to the warrant requirement. Mitzel,
[¶ 19] When a person voluntarily consents to chemical testing, the implied consent law does not apply. Smith,
To determine voluntariness, we focus on two elements: (1) the characteristics and condition of the accused at the time of the consent, and (2) the details of the setting in which the consent was obtained, with no one factor being determinative. We will show great deference on appeal to the trial court’s determination of voluntariness by refusing to reverse its decision unless it is contrary to the manifest weight of the evidence.
[¶ 20] “Under North Dakota’s implied consent law, ‘implied consent occurs at the time an individual operates a motor vehicle.’ ” Id. at ¶ 17 (quoting McCoy,
[¶ 21] In this case, as in Smith and McCoy, the deputy’s incident report indicates he asked for and received actual consent from Boehm after advising Boehm of the implied consent law. See Smith,
[¶ 22] This Court merely reviews findings of fact; it does not make its own findings of fact. Whitman,
Yl
[¶ 23] In his motion to suppress evidence and brief in support, Boehm argued the blood test was unreasonable. On appeal, the State argues the blood test was reasonable. The district court did not decide the issue. The reasonableness of Boehm’s blood test is an issue of fact. See Schmerber,
[¶ 24] The extraction of a blood sample from an individual suspected of DUI is proper if it is performed in a reasonable manner. Wetsch v. N.D. Dep’t of Transp.,
[¶ 25] This Court merely reviews findings of fact; it does not make its own findings of fact. Whitman,
VII
[¶ 26] The district court’s order granting Boehm’s motion to suppress is reversed and remanded for further proceedings. The deputy met the statutory elements to request the preliminary breath test. The deputy had probable cause to arrest Boehm for DUI because the deputy observed some signs of physical or mental impairment and had reason to believe Boehm’s impairment was caused by alcohol. The district court failed to make factual determinations on the other issues Boehm raised in his motion to suppress evidence. Therefore, this case is remanded for a determination of the voluntariness of Boehm’s consent and the reasonableness of the blood test.
Concurrence Opinion
concurring specially.
[¶ 28] I agree with the majority decision except Parts V and VI regarding Boehm’s arguments that his consent to chemical testing was coerced and involuntary and that the blood test was not reasonably administered. Both claims were made in the district court but not decided. Majority opinion at ¶¶ 16 and 22. We are remanding for the district court to adjudicate those claims. Id. at ¶¶ 21 and 24. Therefore, this Court’s substantive discussion of those claims is dicta and is improperly advisory. See State v. Morin,
concurring specially.
[¶ 30] I understand this opinion to be consistent with the Court’s opinion in State v. Smith,
[¶ 31] DALE V. SANDSTROM