DUI Appeal - North Dakota Ignores Mandatory Observation Period

In State of North Dakota v. Stroh, --- N.W.2d ----, 2011 WL 2698613 (N.D.), 2011 ND 139, the defendant was convicted of DUI after the trial court admitted the results of an Intoxilyzer test into evidence. On appeal, Stroh argued that the officer had failed to ascertain the 20–minute waiting period before administering the test, during which time the test subject may not have anything to eat, drink, or smoke.

North Dakota's breath testing law includes:

The results of the chemical analysis must be received in evidence when it is shown that the sample was properly obtained and the test was fairly administered, and if the test is shown to have been performed according to methods and with devices approved by the director of the state crime laboratory or the director's designee, and by an individual possessing a certificate of qualification to administer the test issued by the director of the state crime laboratory or the director's designee.(Emphasis added.)
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Fair administration of an Intoxilyzer test may be established by proof the State Toxicologist's approved method for conducting the test has been “scrupulously followed.” Steinmeyer, at ¶ 10. “However, ‘scrupulous' compliance does not mean ‘hypertechnical’ compliance.” Id. (internal quotation omitted).

The officer admitted that he left the defendant alone twice during the 20 minute observation period. Stroh asserted the State did not establish “scrupulous compliance” with the Toxicologist's approved method for conducting the test because the evidence showed Stroh was handcuffed in front of his body and that Stroh was in possession of a can of chewing tobacco.

The State asserted, however, that the district court as fact-finder could reasonably infer that Stroh did not have anything to eat, drink, or smoke during the 20–minute waiting period. The State contends the court did not abuse its discretion because its decision was the product of a rational mental process and the court found that the 20–minute waiting period was complied with. The State contended that although there was testimony Stroh possessed a can of chewing tobacco when he was patted down, there was no evidence he consumed the tobacco, even though Stroh testified at trial.

The officer unequivocally testified on direct that he had ascertained the 20–minute waiting period before giving the first breath sample; that Stroh did not have anything in his mouth; that he did not observe Stroh eat, drink, or smoke anything; and further that Stroh did not belch, burp, or vomit, and gave a good sample. During trial, however, the video recording of the encounter with Stroh from the officer's squad car was also admitted into evidence. Although the officer testified he ascertained the 20–minute waiting period by observing Stroh, Stroh's counsel on cross-examination established the officer had actually left Stroh unattended in his car at least twice.

Concluding that despite this evidence the result was properly admitted, the court stated:

"Under these facts and circumstances, we conclude the district court did not abuse its discretion in deciding the State established the officer scrupulously complied with the 20–minute waiting period. Although Stroh testified at trial, Stroh did not testify that he had in fact put any chewing tobacco in his mouth before the test, or during the periods he was left unattended in the squad car. The officer, however, testified that he ascertained the 20–minute waiting period and that prior to the test, Stroh did not have anything in his mouth. This left the inference to be drawn by the district court, which in essence concluded that Stroh had failed to rebut the evidence that the officer ascertained the 20–minute waiting period.

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DUI Appeal - North Dakota Says Informant 911 Call Unreliable

In Gabel v. North Dakota, --- N.W.2d ----, 2011 WL 2652253 (N.D.) a dispatcher at the Stutsman County Sheriff's Office sent a radio message to Officer Elizabeth Kapp stating that Chad Steele had reported a vehicle traveling on Highway 281 south of Jamestown that would speed up and slow down, not allowing Steele to pass. Steele also reported the license plate of the vehicle was “JAYBIRD.” Steele continued to follow the driver relaying his location to the dispatcher on his cell phone. Steele's information was relayed from the dispatcher to Officer Kapp. The record does not reflect how many times Steele attempted to pass, what the road conditions were, how long Steele had been following Gabel, or at what speed Steele was attempting to pass Gabel's vehicle.

Officer Kapp passed Steele's vehicle and located Gabel's vehicle. Officer Kapp measured the speed of Gabel's vehicle at 47 miles per hour in a 65 mile per hour zone. There was no posted minimum speed limit in the area. After determining the vehicle's speed, Officer Kapp stopped Gabel's vehicle based on the information she received from the dispatcher. Officer Kapp did not report independently viewing a traffic violation. Her testimony indicates she did not observe erratic or suspicious driving. Officer Kapp testified she had not noticed Gabel cross the center line, drive on the shoulder, or commit any moving violation. Officer Kapp stated the stop was based on Steele's report that Gabel had previously sped up in his own lane, making it difficult for Steele to pass.

Officer Kapp testified she knew the informant in her “professional capacity”; she believed he had a criminal record.

The North Dakota opinion commented on the informant's reliability as follows:

"We have allowed tips from known criminal informants to justify a stop provided the tip is otherwise reliable. State v. Anderson, 2006 ND 44, ¶¶ 13, 17, 710 N.W.2d 392. “As a general rule, the lesser the quality or reliability of the tip, the greater the quantity of information required to raise a reasonable suspicion.” Id. at ¶ 13 (quoting Miller, 510 N.W.2d at 640). “In evaluating the factual basis for an investigatory stop, we must consider the totality of the circumstances, including the quantity, or content, and quality, or degree of reliability, of the officer's information.” Id. Here, the content and quality of the officer's information when she made the stop was insufficient to justify a stop of Gabel's vehicle. The officer was only able to corroborate the location of the vehicle and its license plate but unable to corroborate any illegal activity or other suspicious activity that would confirm the reliability of Steele's tip. There is nothing from the record in this case that ensures the informant was reliable. Officer Kapp did not testify about the informant's reliability. Given her testimony, there is nothing in this record to suggest Officer Kapp regarded Steele as other than a member of the “criminal milieu.” Members of the “criminal milieu” must have their reliability established. Id. at ¶ 15. However, we need not determine the reliability of Steele, because, even assuming he was a reliable informant, his tip of a vehicle speeding up and slowing down, not allowing a car to pass is insufficient to support a traffic stop absent corroboration of otherwise illegal activity or suspicious conduct. Driving on a highway slightly below the speed limit is not sufficiently suspicious to support a traffic stop."

In concluding that the stop was illegal, the North Dakota Supreme Court stated:

"Officer Kapp testified she did not observe a traffic violation. The sole reason Officer Kapp gave for justifying the stop was based on Steele's report that Gabel had previously sped up in his own lane, making it difficult for Steele to pass. Officer Kapp testified that this unverified report provided her with sufficient information that Gabel was an impediment to traffic. Officer Kapp did not independently observe or corroborate Gabel speeding up and slowing down nor did she view Gabel impede the ability of others to pass his vehicle. Based upon the information conveyed, there is only a possibility that a violation had occurred. This is the functional equivalent of the “possible reckless driver or drunk driver” held to be insufficient to establish a reasonable and articulable suspicion in Anderson, 2005 ND 97, ¶ 21, 696 N.W.2d 918.

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DUI Appeal - Double Jeopardy Bars Retrial, Says North Dakota

In Day v. Judge Bruce Haskell, --- N.W.2d ----, 2011 WL 2505052 (N.D.), 2011 ND 125, the defendant sought a writ from the Supreme Court of North Dakota to bar a judge from forcing the defendant to be retried. The facts of the case are unusual:
"In April 2010, Day was charged by complaint with driving under the influence of alcohol. A jury trial was held in February 2011. After the jury was empaneled and sworn, the trial court called a brief recess and the attorneys left the courtroom. At some point, Day was alone in the courtroom with the jurors and the bailiff. When the attorneys returned to the courtroom, they witnessed what appeared to be a conversation between the bailiff, the jurors, and Day. The trial court returned to the courtroom and read the opening instructions. After the instructions were read, the State moved for a mistrial based on the communication between the bailiff, the jurors, and Day.

"The trial court, attorneys, and Day met outside the presence of the jury, and Day objected to the State's motion and requested the bailiff testify about the communication. The bailiff testified that some of the jurors were talking about whether pheasants sleep in trees, Day said pheasants often sleep in trees, and the bailiff told the jury about seeing a turkey in a tree. The State renewed its request for a mistrial. Day opposed the motion and requested a curative instruction. The court granted the State's motion for a mistrial and excused the jury.

"On March 10, 2011, Day moved to dismiss the complaint, arguing a second trial was prohibited under Fifth Amendment double jeopardy principles. In April 2011, the trial court, another judge presiding, denied Day's motion to dismiss, finding a mistrial was reasonably necessary."


As stated in the opinion:

"‘The general rule is that a person is put in jeopardy when his trial commences, which in a jury case occurs when the jury is empaneled and sworn, and in a non-jury trial when the court begins to hear evidence.’ “ Linghor, 2004 ND 224, ¶ 20, 690 N .W.2d 201 (quoting State v. Berger, 235 N.W.2d 254, 257 (N.D.1975)). Here, jeopardy attached when the jury was empaneled and sworn.

"However, the Double Jeopardy Clause does not prohibit retrial in every case where the first trial has terminated after jeopardy attached but before a verdict is rendered. Linghor, 2004 ND 224, ¶ 20, 690 N.W.2d 201. Whether a defendant may be retried depends on whether a mistrial was properly granted. State v. Voigt, 2007 ND 100, ¶ 12, 734 N.W.2d 787. The basic controlling principles in determining whether a mistrial was properly granted are manifest necessity and the ends of public justice. Id. In United States v. Perez, 22 U.S. 579, 580 (1824), a landmark case construing the Double Jeopardy Clause, the United States Supreme Court said:

We think, that in all cases of this nature, the law has invested Courts of justice with the authority to discharge a jury from giving any verdict, whenever, in their opinion, taking all the circumstances into consideration, there is a manifest necessity for the act, or the ends of public justice would otherwise be defeated. They are to exercise a sound discretion on the subject; and it is impossible to define all the circumstances, which would render it proper to interfere. To be sure, the power ought to be used with the greatest caution, under urgent circumstances, and for very plain and obvious causes; and, in capital cases especially, Courts should be extremely careful how they interfere with any of the chances of life, in favor of the prisoner. But, after all, they have the right to order the discharge; and the security which the public have for the faithful, sound, and conscientious exercise of this discretion, rests, in this, as in other cases, upon the responsibility of the Judges, under their oaths of office."

Concluding, the court stated:
"In this case, the attorneys were briefly afforded an opportunity to be heard on the issue. However, the trial court failed to consider other alternatives before granting the State's motion for a mistrial and the decision was not made after sufficient reflection. The trial court allowed the attorneys to question the bailiff at Day's attorney's request, but in response, the trial court said, “frankly, any conversation would be grounds for a mistrial. So I'm not—I'll allow you to make your record, I don't think that it's going to be particularly helpful.” The issue was raised shortly before 10:49 a.m., and the trial court granted a mistrial at approximately 10:56 a.m. The trial court did not make any findings about juror bias or prejudice. Day's attorney requested a curative instruction, but the trial court failed to consider the request and granted a mistrial. The record indicates the trial court believed a mistrial would be required if there was any conversation between the defendant and the jury. A mistrial is not automatically required when the jury is exposed to improper communication; rather, the court must consider the circumstances of each case and determine if there is a manifest necessity for a mistrial. See United States v. Melius, 123 F.3d 1134, 1138–39 (8th Cir.1997) (the trial court's decision to grant a mistrial when there is a claim of possible juror bias is entitled to deference but the court's decision is not beyond review and the court must act responsibly and deliberately considering the defendant's interests). The trial court's decision to terminate a criminal proceeding after jeopardy has attached should not be taken lightly. Linghor, 2004 ND 224, ¶ 22, 690 N.W.2d 201. In this case, the trial court did not consider any alternatives and the decision was made quickly and without sufficient reflection. The trial court did not engage in the “scrupulous exercise of judicial discretion” required before making its decision.

"Under the facts and circumstances of this case, we conclude granting a mistrial was not manifestly necessary and retrial is constitutionally barred."


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DUI Appeal - North Dakota Blood Test Discovery Mistakes Not Sanctioned

In North Dakota v. Sauer, --- N.W.2d ----, 2011 WL 987169 (N.D.), 2011 ND 47, the defendant filed a detailed discovery request for information, which included any blood testing notes or reports. The State claimed that they had complied with the request, and the matter was set for trial some 4-5 months later. Lisa Hentges, a forensic scientist with the North Dakota Crime Lab, testified about her analysis of Sauer's blood sample. During Sauer's cross-examination, Hentges mentioned she had a case file, which included her notes and a print out of the test results from the blood tests she performed on Sauer's blood sample. Sauer asked the district court for a brief recess so he could review the file because he claimed the State did not provide him with a copy of the file in response to his discovery request. The State admitted it did not provide Sauer with a copy of Hentges' file, but claimed the discovery request was very detailed and it “didn't notice” the request for the testing notes.

The court questioned Sauer's attorney about why he did not move to compel discovery of the testing notes, and Sauer's attorney said he did not know they existed. The court provided Sauer's attorney with the brief break he requested to allow him to view the file. After the break, Sauer's attorney requested a continuance of the trial. The court denied Sauer's request for a continuance and found the case file was not material to preparing a defense and Sauer should have brought a motion to compel if he felt he did not have something he needed. Sauer continued his cross-examination of Hentges. Later, the court ordered the State to provide a copy of the case file to Sauer's attorney after court concluded for the day.

The trial court granted Sauer's request for a brief continuance to allow his attorney to inspect the case file before continuing to cross-examine Hentges. The court also ordered the State to make a copy of the case file available to Sauer's attorney after the first day of trial and he had until the next afternoon to look at the case file. Sauer's attorney failed to pick up the copy of the file. The court granted Sauer's request to make the case file a trial exhibit, but Sauer's attorney indicated he did not want the case file admitted into evidence at the trial.



On appeal, the Supremes found that the trial courts offer of a brief recess was sufficient to remedy the violation. "Sauer has not shown he was significantly prejudiced by the State's discovery violation. We conclude the court did not abuse its discretion by denying Sauer's request for a continuance." Of course, like most defense attorneys in this field, the information in the lab file was not likely decipherable by an untrained attorney in the absence of an expert's review of the same, and one to one-and-a-half days of a 'recess' wouldn't let the defense attorney get up to speed. The Supreme Court opinion fails to note that likely dilemma.



If there is one good morsel to take from the opinion, it is the following unenforced threat by the Court:

"Our opinion in this case places all prosecutors on notice that N . D.R.Crim.P. 16 does not allow them to shift the burden of obtaining materials in the hands of other governmental agencies to the defendant. We further caution that, although a showing of prejudice is generally required before reversing a criminal conviction for a discovery violation, reversal for conduct which is merely potentially prejudicial may be warranted as a sanction for institutional non-compliance and systemic disregard of the law if the conduct is commonplace."

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