State v. Larson

finding thе evidence sufficient bind Green, in Persons and over the defendants Dakota, Plaintiff, STATE of North were, essentially, finding Morrissey, we mag- on which the that there was evidence probable cause deter- istrate could make a LARSON, Gerald Defendant. of the merits of mination. Our discussion Cr. No. 784. claim and the extent the defendant’s sufficiency we reviewed the Supreme Court of North Dakota. prevent evidence was to tactics of counsel bringing these cases before this from court 22, Dec. bringing again prior them to trial. Al- though purpose specifically this was not Persons,

expressed in Green above

quoted Morrissey in statement reflects our respect

thoughts with to the tactical uses of certiorari, thought resulting

a writ of

from cases like Persons and Green.1 we

For the reasons stated above affirm denying

the order writ of certiorari.

ERICKSTAD, J., PEDERSON, C. SAND, JJ., WALLE and

VANDE concur. “protect 1. Skar directs our attention to State v. Nord held to answer for an offense” and to quist, (N.D.1981), against secrecy grand- 309 N.W.2d where abuses of the inherent in said, Morrissey, citing jury proceedings 295 N.W.2d we a determination the court (N.D. 1980), proper pro statutory that we believe the as to whether or not the standard has challenge deny implicit cedure to ing an order of the court been met in is Sections 29-10.1-26 and a motion to dismiss the indictment was 29-10.1-33.” application proceedings to this Court for a writ of certiorari. We note that the involved in the However, Nordquist “secrecy the extent to which cites instant case do not involve the inher- Morrissey holding and, grand therefore, in in jury proceedings” limited our in ent Nordquist stant protections suggested by Nordquist case. The statement in the controlling are not interpreted enabling to be as a rule indicted in the instant case. apply defendants in all cases to to this Court Nordquist We note that the defendant did complete for a de novo review of the sufficien argue sufficiеncy of the evidence at cy supported of the evidence which their indict stated, respect trial. With to that fact we at by grand jury. Nordquist, ment We stated page 116: page at “that on assertion that the evi logic reversing “There would be little by grand jury dence heard was not sufficient necessary conviction because the evidence support support an as a indictment serves limited when, lacking an indictment was on ground challenging the indictment.” appeal, it is conceded that the evidence nec- stated, essary Nordquist opinion page for conviction was introduced at the at protect “to the citizens trial.” of this State from the However, defending against this is not the situation in the burdens of themselves crimi- instant yet charges competent nal unless sufficient evi- case. Skar has to be tried for the crimes charged. dence indicates that citizen or citizens must be Jorgenson, Lewis Atty., C. Devils State’s Lake, plaintiff. for Heustis,

Haugland Lake, & Devils for defendant.

ERICKSTAD, Chief Justice. joint Upon application by the State defendant, Larson, Ramsey Gerald County Jurisdiction, Court with Increased 32-24, pursuant N.D.C.C., Chapter certi- fied to fоllowing ques- this Court the two tions of law for determination:

“1. Is the North Dakota re- quired sample to make a of the de- fendant’s breath taken at ‍‌​​‌​‌‌​​​‌​‌​​‌‌​​‌‌​​​‌​​‌​‌‌‌‌​‌​​‌​​​​‌‌‌‌​​‍the time breathalyzer examination available to the defendant for inde- pendent testing?

“2. Is the of North Dakota re- quired to make the chemical breathalyzer from the available to the defendant for inde- pendent testing?” The trial court answered the questions negative, concluding the State .is not de- sample with a of his breath taken fendant at the time of a nor to him with the test Court, Breathalyzer. This hаv- ing concluded that the determination of this depend principally upon case will the con- applicable struction of law to the certified, proceed ques- will to answer those tions. parties stipulation entered a of facts

including following: A law enforcement officer, so, having probable cause to do ar- arresting rested Larson for DWI. The offi- sample independent testing physi- to deter- but that it is take a breath cer elected to cally possible sample in Larson’s for a of one’s breath to of alcohol mine the amount blood, preserved in some suitable vial or con- purpose the officer used for which tainer. Larson asserts that State had Breathalyzer machine. The results duty sample him with a breath that Larson had Breathalyzer test showed time exami- one-percent by taken at the fifteen-hundredths which nation was administered and that weight alcohol in his blood of 39-20-07, amount, to do so constitutes a viola- pursuant to N.D. State’s failure Section process right C.C., person tion of his due to a fair trial. presumption raises a required intoxicating liquor.1 We conclude that the State is not the influence of under provide independent to a defendant with an taking Subsequent to the test Larson sample taken at the time a of his breath upon to made a demand the State Breathalyzer examination is administered. him, independent testing, separate a for 39-20-02, N.D.C.C., arrest- sample provides: of his breath obtained Section administering Breath- ing while officer qualified test. “Persons to administer alyzer ampoule the test test and qualified Only physician, a or a techni- Breathalyzer. The was unable to cian, chemist, registered acting or nurse request sample either because no of honor request at the of a law enforcement offi- breath was saved at the time the Larson’s may purpose cer withdraw blood for of test was administered and because test determining the alcoholic content therein. immediately ampoule was discarded follow- apply This limitation shall not to tak- ing Larson asserts that the test. saliva, breath, ing specimen. of a or urine failure State’s to him a breath sam- person may physician, The havе tested a ple ability or the test lessens his technician, chemist, qualified regis- or a impeach results and con- nurse, qualified person tered or other of stitutes a violation of his constitutional choosing his own administer a chemical right process. remedy, to due As a he any test or tests in addition to adminis- suppress requests this Court to the Breatha- tered at the direction of a law enforce- lyzer test results. inability ment officer. The failure or by person an shall obtain additional QUESTION 1 preclude the admission of the test or North “Is the State of Dakota tests at the of law en- taken direction sample make a the defendant’s breath of Upon request forcement officer. of breathalyzer tested, taken at the time person who is full information examination available to the defendant concerning the test or tests taken at the independent testing?” for direction of the law enforcement officer (Em- shall be made available to him.” arresting the time the officer At added.) phasis administered the person sample no of Larson’s breath was taken or Pursuant to the statutе a testing by upon Larson. officer has independent saved for whom law enforcement parties stipulated any The that the Breath administered a chemical test can have alyzer qualified person choosing machine used the test of his own admin- separate sample adapted to obtain a breath ister a test or tests for his own use. If that Upon proceeding arising been committed while under the influence of in actual son’s blood evidence of the amount of alcohol in the 39-20-07, N.D.C.C., “39-20-07. the trial of physical at the Interpretation by any person any out of acts control time of the act civil or criminal action or provides of a motor vehicle intoxicating liquor, while alleged to have chemical relevant alleged driving tests. part: per- as breath, saliva or shown purpose of this section: alcohol dredths of one under the influence of “(3) A sfc person chemical his blood shall ^[*] having, percent urine #; is admissible. For the at that or more intoxicating ^[*] presumed of his time, ^[*] by weight ten-hun- liquor.” sfc blood, to be samples desires his person breath for available to the defendant right independent testing he has for independent testing?” acquire samples those with the as- himself Larson asserts State’s failure to he any qualified person chooses. sistance preserve him N.J.Super. Bryan, used in the Breathalyzer examination vio Jersey stat- A.2d 611 involved a New lated his rights process constitutional of due provisions ute similar Section 39- interpreted as by the United States Su 20-02, N.D.C.C., person permitting a who preme Court Brady Maryland, State of Breathalyzer examina- has submitted to a 373 U.S. 83 S.Ct. 10 L.Ed.2d 215 samples “have such taken and chem- tion to (1963). brеath, or blood ical tests of his urine made his person physician own selec- The United States Court in Bra- Jersey ‍‌​​‌​‌‌​​​‌​‌​​‌‌​​‌‌​​​‌​​‌​‌‌‌‌​‌​​‌​​​​‌‌‌‌​​‍pro- also tion.” New statute dy, supra, held that “the by the police officer must inform vides that prosecution of evidence favorable to an ac- being right to person the tested of his upon request cused process violates due samples Superior taken. The Court of where the evidence is material either to Jersey Bryan, supra, concluding New punishment, guilt irrespective to of the statute defendant that the affоrded the due good prosecution.” faith or of the bad faith by process permitting her obtain her own to petitioner Brady, supra, The and a com- samples, breath stated: panion guilty were found of murder in the statutory pro- “The mandate degree. petitioner first Prior trial the to proc- a means with ‘due vides consistent requested prosecution had the to allow him by may verify ess’ which a defendant the by police extra-judicial he has the examine companion’s test consented to his authorities. This court finds the statute statements, of and several those statements meets the minimum of ‘due standard him; one, were shown to but in which the process’ and therefore is entitled to a companion had admitted the actual homi- presumption constitutionality. of To cide, prosecution. was the by withheld comport process procedures with due the held that court the of this con- only followed need be fair and reasona- by prosecution peti- fession violated the currently ble. The test as constituted process rights. tioner’s due (Citations such requirements.” meets omitted.) 336 A.2d at 514. distinguishable The instant case is conclude, Jersey We as did the New Su- Brady, a supra, respects, from in number of perior regard Jersey Court with the New importantly companion’s most statute, 39-20-02, N.D.C.C., that Section although available, in Brady, statement was permits person which to obtain his own by withheld from the defendant sample, breath affords him fair and rea- whereas in the case the instant test am opportunity and verify sonable to scrutinize poule Breathalyzer impeach the results of the destroyed, prac was as matter of routine by test administered the lаw enforcement tice, immediately following the administra and, thereby, comports officer with the due was, therefore, of the tion test and unavail process requirements of the Constitution. prosecution able to either the or the de required that the We hold State is Nevertheless, agree we fense. with the ra sample make a of the defendant’s breath Appeals of of tionale the U. S. Court for the taken at the time of the ex- expressed District of Columbia as in United amination available to the defendant Bryant, (D.C.Cir. v. F.2d 439 642 States indepеndent testing. 1971), whereupon court concluded that QUESTION 2 Brady requirement applies to a case in requested by defendant “Is the State of North Dakota by make chemical test from the been lost has or discarded State: 754 523, (1976); applicable App. P.2d 449 Brady progeny its 550 Lauderdale

“Were Alaska, (Alaska 548 P.2d 376 of the non- only when the exact content Hitch, 641, 1976); People 527 known, 12 Cal.3d was the disclo- disclosed materials (1974). Cal.Rptr. 117 9 P.2d empty promise, duty sure would be an by suppression evi- easily circumvented In each of those cases the defendants of destruction rather dence means courts, the satisfaction of the established to purpose to reveal. The testimony, than mere failure through expert that the test am- simbly [simply] to cor- duty poule of the could be used advantage, whereby analyzed provide evi- scientifically so as to rect an imbalance reflecting accuracy on the may surprise dence prosecution the defense evidence; Breathalyzer test results. In each of those rather, it is at trial with new appellate court had before it a cases of the trial a search for also to make court, supported determination trial material, truth informed all relevant record, by the evidence in the that material which, because of imbalance in much by permitting the de- evidence could result resources, investigative will be exclusive- pursue independent fendant a course of ly in the hands of the Government.” inspection ampoule. of the test F.2d at 648. Consequently, in each of those cases the Enumerating on the materiality required by Brady, element holding, in Moore v. Court supra, was met. Illinois, 408 U.S. S.Ct. case, however, In the instant Larson has L.Ed.2d 706 stated: ampoule, not demonstrated that if holding Brady “The heart of the available, analyzed it were could be to ob- evidence, prosecution’s suppression the of tain material evidence. There has been no production re- in the face of a defense case, accompany- trial in this and the record quest, where the evidence is favorable to ing sparse, the certified of law is guilt the accused and is material either to consisting primarily parties’ stipula- of the thеn, punishment. Important, or to are deposition tion of facts and a of David (a) suppression by prosecution the after a Shelton, Toxicologist employed a Forensic defense, by (b) request the the evidence’s Toxicologist the office. State Shelton defense, favorable character for the and machine, Breathalyzer testified how the like (c) materiality of 92 the the evidence.” case, the one used in the instant measures at 2568. S.Ct. percentage person’s the level of alcohol in a jurisdictions, In at least three the courts through sample.2 blood the use of a breath that, the rule held under enunciated testified, through deposition, also He his pro- the is State regard feasibility analyzing to the upon request vide the defendant the test ampoule Breathalyzer the used ampoule used in a examina- testimony examination. His was that it tion and that the failure to possible it con- analyze would not be the test ampoule stitutes a violation of the defendants’ due reflecting upon to obtain evidence Michener, process rights. accuracy v. 25 Or. the of the test results: State 2. “A. The set amount of breath collected in “Q. “A. The person’s icals which will react with alcohol from a use is? Breathalyzer ampoule. the alcohol concentration of the breath at the time of the test. Can ¤ n Breathalyzer ampoule a reliable you breath describe the within a minute and a half to is then delivered to the accurate ^[*] ampoule, contains chem- ^[*] reading what its person’s ^[*] as “Q. “A. The alcohol is “A. The color is determined “A. That is correct.” “Q. tric that was pears the caused is some kind of is that measured sample. And Now, why measuring system. amрoule in relation to the amount of alcohol you present are and the is that color potassium telling by photometric on light trapped by in that yellow measurement device? Breathalyzer? dichromate important? captured color the solution photome- which is breath disap- there How

755 corre- “A. Could do that too. am concerned ‍‌​​‌​‌‌​​​‌​‌​​‌‌​​‌‌​​​‌​​‌​‌‌‌‌​‌​​‌​​​​‌‌‌‌​​‍to As far as I “A. later to the

late back a “Q. you But would need access to person’s in a of alcohol amount you were particular ampoule used if absolutely mean- would be breath going to make those tests? ingless. you perform “A. If were to the tests ^[******] which you have just described there way determining would be no when it is received is a ampoule “A. The whether or not an ac- that back to vial. You break off the glass sealed curate test had been vial, way only effective glass administered.” ampoule would be to seal save this rebutting in the record cutting There is no evidence glass up vial with a testimony. We conclude blowing type Shelton’s glass torch torch or has failed to demonstrate that it is Larson impossiblе. The would be analyze ampoule to ob- possible to shaped is has de- way the reflecting upon material tain of the stroyed the neck has, accuracy that he of the test results and impossible to draw the would be therefore, materiality failed to meet up. glass out to seal it back supra. requirement Brady, ****** feasibility analyzing a test compo- Again, analysis of “A. ampoule to check the results of a Breatha ampoule could be re- nents clearly accepted lyzer examination is not so done, could be rеmea- the volume community that the courts in the scientific sured, abso- all of these would have See, judicial of it. Edwards can take notice lutely no value as far as no effect or Oklahoma, (Okla.Cr. 60 P.2d State Breathalyzer re- interpreting back a 1975); Bryan, N.J.Super. sult or a alcohol concentration blood cases, (1974). In the 336 A.2d at the time of the test. Superior Jersey of New and the Court ****** Appeals held of Criminal Oklahoma Court really “Q. it Your insistence had no constitutional due that a defendant keep scientifically feasible him proсess right to have as to ampoule and run tests test independent ex ampoule we have so forth as volume and based their conclu amination. Both courts you this leads me to ask discussed sion, ground that the part, in on the at least state that question: you Do then feasibility analyzing a used test way the test am- there is no that accepted by the scientific communi was not tested poule used could be once demon had not ty and that the defendant again? again could be measured or retesting analysis could that strated Oh, upon refleсting at all. “A. evidence material In this re test results. the “Q. accurately measure volume? To Ap gard, the Court of Criminal Oklahoma “A. Not at all. Edwards, supra, stated: peals, in “Q. It could be then? Court, ruling Brady, the “In Yes, sir. “A. by prosecution suppression the that ‘the measuring “Q. right. about All How upon favorable to an accused of evidence testing glass glass itself or process where the request violates due defects, could that optical itself or guilt either to or to evidence material again? be done .,’ qualified effect . punishment. suppressed or circumstances under you “A. If so desired. vio- be deemed a missing evidence would propor- “Q. right. All How about rights. constitutional lation of ones contained tion then of the chemicals ****** ampoule? in the “An examination of record shows must not be denied a fair trial only sought that the defendant to raise withholding requested State’s of evidence possibility existing of there However, a defect by him. withholding evi used; ampoules that no effort was deprive dence the State cannot the de expert testimony made to offer as to fendant of fair triаl or violate his due scientific manner or methods which could process rights if that evidence is not favor employed examining ampoules, able to the We defendant. believe that or, matter;, for that as to the likelihood requested where the evidence has been de physical that the nature of the evidence case, stroyed, as in the instant the defend any would be found to be of actual value ant, to proc establish a violation of his due best, given At to defendant. the inevita- rights ess under must demon decomposition ble of a chemical solution probability strate a reasonable that the de vial within the and its through alteration stroyed evidence would have been favorable use, arguments defendant’s constituted regard agree to him. we In this with the speculation part, mere on his with noth- Oregon Appeals Court of in State v. Mi ing more advanced to realistically suggest chener, Or.App. 550 P.2d 449 probability that any information of wherein it stated: definite value would be obtained from apparent “We deem it Brady any recognized process or reliable of re- requires rule disclosure of material evi- examination, or that the results of this dence where a defendant establishes some particular endeavor would have been fa- possibility, reasonable based on concrete vorable to the defendant.” 544 P.2d at evidence imagina- rather than a fertile tion, it be favorable to his would Larson, Defendant as the defendant in Ed cause.” 550 P.2d at 454. wards, has, supra, stage pro at this Miehener, supra, the court concluded ceedings, entirely failed to demonstrate defendants, introducing video that thе could materi tape showing the defendants had al evidence on guilt the issue of his difficulty little or no performing physical punishment. Consequently, we hold that coordination dexterity tests adminis- required, State is not under the due arrests, tered at the time of their had dem- process interpreted by Brady, clause as su onstrated a possibility reasonable that an pra, Larson with the test am error could have occurred in the initial poule examination. examination and that evi- To constitute a violation of the dence derived from an of the test rights process Brady, defendant’s due under ampoule would have been favorable supra, the State must have withheld evi them. dence which was both material and favor In the instant case Larson has introduced able to the Brady, defendant. Because su no evidence which would establish a reason- pra, involved the of evidence probability able analysis that an of the test which was still in existence it was a rela provided would have material evi- tively simple matter for the courts to deter dence favorable to him at the trial. On the mine whether or not that evidence would us, record before we hold that the State have been favorable to the defendant. Un required, was not proc- as a matter of due like Brady, supra, the situation in the in ess, to make the from the Breatha- (i.e. stant case involves evidence lyzer available Larson for ampoule) which intentionally, was but not independent testing. maliciously fraudulently, destroyed or and which, reason, for that for a unavailable accordance with the opinion, determination of whether or not it would this Court answers both of the certified provided favorable evidence for the questions negative. in law the defendant at underlying princi trial. The ple is that a PAULSON, JJ., defendant PEDERSON and concur. WALLE, Justice, concurring, yet VANDE in I have another involving concern part dissenting part. ‍‌​​‌​‌‌​​​‌​‌​​‌‌​​‌‌​​​‌​​‌​‌‌‌‌​‌​​‌​​​​‌‌‌‌​​‍and issuing court’s advisory opinion. an Section 6 of Article VI of the North Dakota Consti Although agree I with the Chief Justice’s provides the two tution appeals answers to certified shall be al law, questions of I am concerned about the lowed from decisions of lower courts to the precedent by considering established Supreme may Court provided by as be law. questions on their merits. This court has Legislature The has determined that an or historically held that it will determine certi suppressing der may appealed questions only fied when the issue will de by the State to the Court when pend principally wholly upon the con accompanied by a statement prose thereto, applicable struction of the law cuting attorney asserting depriva interpretation construction or is in tion of the property use of thе ordered to be great doubt and is vital or of moment in the suppressed returned or or of a confession or See, e.g., cause. Scranton Grain Co. v. Lub suppressed admission ordered to be has ren Co., Supply bock Machine & 175 N.W.2d 656 proof dered the available to the State insuf (N.D.1970). majority opinion, without discussion, ficient as states that this court has a matter of law “con or so weak in its cluded that the determination of this case entirety any possibility prosecuting depend principally upon will the construc charge to a conviсtion has been effec tion applicable questions of law to the certi tively destroyed. 29-28-07(5), Sec. N.D. proceeds ques fied” and to answer those C.C. Presumably right this appeal was tions. any appeal enacted because the State I am not convinced that the determina acquittal, after though even the order was tion depend of this case will principally erroneous, permit found would not a retrial upon applicable the construction of law tó of the defendant inasmuch as a retrial questions. certified I аssume that place would twice jeopar the defendant majority opinion does not indicate that a dy contrary for the same offense to Article conviction can driving be had for while 5 of the Amendments to the United States under the intoxicating influence of bever I, Constitution and Article Section ages only if there is a chemical test which However, North Dakota Constitution. indicates that the defendant was under the given right appeal defendant previously upheld influence. This court has denying an order a motion for a convictiоn DWI based on evidence because, convicted, of evidence if he is he See, other than that of the chemical test. may appeal raise that issue on e.g., Glavkee, from the (N.D. State v. 138 N.W.2d 663 1965). judgment Whether or not such evidence is of conviction. Since decision is, course, available in this instance Ohio, Mapp 367 U.S. 81 S.Ct. known to us because there been has no trial. 6 L.Ed.2d 1081 evidence obtained If such evidence is available it cannot be search and seizure violative of the Fourth said that the determination of this case will Amendment to the United States Constitu depend principally upon the construction of is, by tion virtue of the Due Process Clause applicable law questions. to the certified Amendment, of the Fourteenth inadmissi There is a reason for this court’s consistent Matthews, ble in courts. past refusal to consider certified (N.D.1974). N.W.2d 90 This court has con questions unless the determination of those many involving ap sidered since cases wholly dispose will principally peals by judgments defendants from of con of the issues in the case. The reason is that suppress viction in which motions evi opinions, this advisory court does not issue prior during dence were denied to or trial. question and a determination of a certified 29-28-07(5), Since the enactment of Section wholly that principally dispose does not (Ch. N.D.C.C. Sec. 1977 N.D.Sess. of the issues in the case would constitute an Laws), giving right See, appeal advisory opinion. e.g., Meckle v. Hoff man, (N.D.1956). evidence, 78 N.W.2d 166 suppressing from an order this appeals by

court has heard several such apparent It is that in most

State. instances may argued

it

nonsuppression evidence is vital to a prosecution.

criminal order Legislature may appeal the has re- attorney

quired prosecuting to file a My

statement to that effect. fear is that majority ‍‌​​‌​‌‌​​​‌​‌​​‌‌​​‌‌​​​‌​​‌​‌‌‌‌​‌​​‌​​​​‌‌‌‌​​‍opinion has now created a new whereby only

method the prosecuting

attorney defense attorney but the and the may request judge

trial the advice of this prior Although

court to trial. agree I

the merits of the issues which the majority

opinion announces I must nevertheless dis- portion opinion

sent to

concludes that the certified should

be answered this court.

SAND, J., concurs. KRAFT, Appellee,

Peter A. Plaintiff and MALONE, Acting Mayor City

Pat Linton, Municipal Corporation,

City Linton, Dakota, Council of North City Linton, Dakota,

and The North

Municipal Corporation, Defendants and

Appellants.

Civ. No. 9993.

Supreme Court of North Dakota.

Dec.

Case Details

Case Name: State v. Larson

Court Name: North Dakota Supreme Court

Date Published: Dec 22, 1981

Citation: 313 N.W.2d 750

Docket Number: Cr. 784

Court Abbreviation: N.D.