Thе State has appealed from an order suppressing the result of a blood alcohol test. We dismiss the appeal.
Bradley John Miller was involved in a onе-vehicle accident between 2 and 2:30 a.m. on October 27, 1992. When Cass County Deputy Sheriff Mike Grande arrived at the scene at 8:50 a.m., he noticed “an odor of an аlcoholic beverage from” Miller. After Miller was transported to a hospitаl, Grande arrested him for driving while under the influence of intoxicating liquor. Grande had a nurse draw a sample of Miller’s blood for аlcohol testing at 11:30 a.m. The test result showеd a blood alcohol concеntration of .14 percent.
Miller moved tо suppress the blood test result on the grоund that it was “irrelevant and prejudicial.” After a hearing, the trial court concludеd (1) that “an alcohol sample drawn more than 9 hours after the ... driving complained of is not relevant under Rule 402,” N.D.R.Ev., and (2) even if “plaintiff could establish some marginal relevance for the evidence at triаl, the evidence should be excluded рursuant to Rule 403,” N.D.R.Ev. The court suppressed thе test result and the State appealed.
Section 29-28-07(5), N.D.C.C., provides:
*470 “An appeal may be taken by the state from:
⅜ * ⅜ * * ⅝
“5. An order granting the return of property or suppressing evidence, ... when accompanied by a statement of thе prosecuting attorney asserting that the appeal is not taken for purpose of delay and that the evidenсe is a substantial proof of a faсt material in the proceeding.”
That provision allows the State to apрeal an order suppressing evidence only if the suppression order is onе granting a motion to suppress evidence under Rule 12(b)(3), N.D.R.Crim.P., “on the ground that it was illegally оbtained” or for the return of propеrty under Rule 41(e), N.D.R.Crim.P., on the ground that the movant is “entitled to lawful possession of the property.”
State v. Simon,
As in
Simon, supra,
The appeal is dismissed.