Filed 10/21/20 by Clerk of Supreme Court
IN THE SUPREME COURT
STATE OF NORTH DAKOTA
2020 ND 208
State of North Dakota, Plaintiff and Appellee
v.
Christopher Lee Devine, Defendant and Appellant
No. 20200033
Appeal from the District Court of Cass County, East Central Judicial District,
the Honorable Susan L. Bailey, Judge.
AFFIRMED.
Opinion of the Court by Jensen, Chief Justice.
Reid A. Brady (argued), Assistant State’s Attorney, Ryan J. Younggren,
Assistant State’s Attorney (on brief), and Sean Kraut (on brief), third-year law
student, under the Rule on Limited Practice of Law by Law Students, Fargo,
ND, for plaintiff and appellee.
Ashley K. Schell, Fargo, ND, for defendant and appellant.
Danny L. Herbel, Bismarck, ND, for amicus curiae North Dakota Association
of Criminal Defense Lawyers.
State v. Devine
No. 20200033
Jensen, Chief Justice.
[¶1] Christopher Lee Devine appeals from a criminal judgment entered
following his conditional guilty plea to criminal vehicular homicide, a class A
felony, and two counts of criminal vehicular injury, class C felonies. Devine
argues the district court was required to suppress the results of the chemical
blood test because he was provided with an incomplete implied consent
advisory. We conclude the exclusionary rule previously codified within
N.D.C.C. § 39-20-01(3)(b) did not apply to a test obtained pursuant to N.D.C.C.
§ 39-20-01.1. We affirm.
I
[¶2] On March 23, 2019, officers responded to a motor vehicle accident
involving two vehicles. Devine was identified as the driver of one of the
vehicles. One of the passengers in the vehicle driven by Devine died due to
injuries sustained in the accident, and two other passengers in the vehicle
sustained injuries requiring medical treatment.
[¶3] Devine was transported from the scene of the accident to the hospital for
medical treatment. Prior to initiating contact with Devine, law enforcement
obtained a search warrant to obtain a blood sample from Devine. After law
enforcement had secured the search warrant, Devine was read an implied
consent advisory that omitted the portion of the advisory informing a driver
that refusal to submit to a urine or breath test is a crime punishable in the
same manner as driving under the influence. The reading of the implied
consent warning was preserved by an audio recording taken at the hospital.
[¶4] Devine moved to suppress the results of the chemical blood test based on
an incomplete reading of the implied consent advisory. The parties stipulated
that a transcript of the audio recording accurately reflected the reading of the
implied consent advisory to Devine. The district court found the blood test
results were admissible because law enforcement obtained a search warrant
for a blood sample; it was unnecessary for the officer to seek Devine’s consent
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to testing after securing the warrant; and any deficiency in the reading was
therefore immaterial.
[¶5] Devine entered a conditional plea of guilty preserving his right to appeal
the denial of his motion to suppress the blood test results. Devine argues the
failure to provide him with a complete reading of the implied consent advisory
requires the exclusion of the test results pursuant to the exclusionary rule
previously codified within N.D.C.C. § 39-20-01(3)(b), and that a deficiency in
the reading of the implied consent advisory could not be cured by law
enforcement securing a warrant to take a blood sample from Devine.
II
[¶6] In reviewing a district court’s decision on a motion to suppress, this
Court defers to the district court’s findings of fact and resolves conflicts in
testimony in favor of affirmance. State v. Washington, 2020 ND 120, ¶ 7,
943
N.W.2d 757. Questions of law are fully reviewable.
Id.
[¶7] The State concedes that the omission of the part of the advisory that
would have informed Devine that refusal to submit to a urine or breath test is
a crime punishable in the same manner as driving under the influence was a
substantive omission. Our cases applying the exclusionary rule previously
found within N.D.C.C. § 39-20-01(3)(b) have required the exclusion of the test
results when there was a substantive omission of a portion of the implied
consent advisory. See, e.g., City of Bismarck v. Vagts,
2019 ND 224, ¶ 18,
932
N.W.2d 523.
III
[¶8] The State argues that it was unnecessary to provide the implied consent
advisory to Devine because law enforcement had already secured a warrant to
collect blood from Devine. Alternatively, the State argues the blood sample was
collected pursuant to N.D.C.C. § 39-20-01.1, and the exclusionary rule provided
within N.D.C.C. § 39-20-01(3)(b) only applies to testing performed pursuant to
N.D.C.C. § 39-20-01. Devine asserts that the search warrant did not vitiate the
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necessity of reading a complete implied consent advisory, a statutory
protection provided within N.D.C.C. § 39-20-01(3).
[¶9] The Fourth Amendment has been interpreted by the United States
Supreme Court to require law enforcement to secure a warrant in order to
require a blood sample. Birchfield v. North Dakota, 136 S.Ct. 2160, 2184
(2016). When law enforcement fails to secure a warrant or demonstrate an
exception allowing a warrantless search, the test results are subject to
suppression in a criminal proceeding as an unreasonable search.
Id. However,
statutes may require more stringent protections than the federal constitution
requires. See State v. Brown,
2018 ND 31, ¶ 9,
906 N.W.2d 120; see also Schoon
v. N.D. Dep’t of Transp.,
2018 ND 210, ¶ 11,
917 N.W.2d 199, (“Birchfield did
not abrogate the admissibility requirements of N.D.C.C. § 39-20-01(3)”).
[¶10] Statutes are construed as a whole and harmonized to give meaning to
related provisions. State v. Marcum,
2020 ND 50, ¶ 21,
939 N.W.2d 840 (citing
State v. Kuruc,
2014 ND 95, ¶ 32,
846 N.W.2d 314). This Court considers the
context of the statutes and the purposes for which they are enacted.
Id.
[¶11] At the time of Devine’s arrest, N.D.C.C. § 39-20-01(3) read as follows:
3. a. The law enforcement officer shall inform the individual charged that
North Dakota law requires the individual to take a chemical test to
determine whether the individual is under the influence of alcohol or
drugs and that refusal of the individual to submit to a test directed by
the law enforcement officer may result in a revocation of the individual’s
driving privileges for a minimum of one hundred eighty days and up to
three years. In addition, the law enforcement officer shall inform the
individual refusal to take a breath or urine test is a crime punishable in
the same manner as driving under the influence. If the officer requests
the individual to submit to a blood test, the officer may not inform the
individual of any criminal penalties until the officer has first secured a
search warrant.
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b. A test administered under this section is not admissible in any
criminal or administrative proceeding to determine a violation of section
39-08-01 or this chapter if the law enforcement officer fails to inform the
individual charged as required under subdivision a.
N.D.C.C. § 39-20-01 (2017).
[¶12] If a driver of a vehicle is involved in a motor vehicle accident that causes
death or serious bodily injury to another, N.D.C.C. § 39-20-01.1 applies:
[If] there is probable cause to believe that the driver is in violation
of section 39-08-01, a law enforcement officer shall request the
driver to submit to a chemical test or tests of the driver’s blood,
breath, or urine to determine the alcohol concentration or the
presence of other drugs or substances, or both.
N.D.C.C. § 39-20-01.1(1) & (2).
[¶13] Devine was the driver of a vehicle involved in a crash resulting in the
death of another individual. Devine has not challenged the probable cause
asserted by law enforcement in securing the warrant to obtain a blood sample
from Devine. The circumstances of this case fall within the statutory scope of
N.D.C.C. § 39-20-01.1 pertaining to the chemical testing of a driver involved in
a crash resulting in serious bodily injury or death.
[¶14] The exclusionary rule previously codified within N.D.C.C. § 39-20-
01(3)(b) is expressly limited to testing “administered under this section . . . .”
The statutory language is unambiguous, applies the exclusionary rule only to
tests administered under N.D.C.C. § 39-20-01, and does not extend the
exclusionary rule to tests administered under N.D.C.C. § 39-20-01.1.
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IV
[¶15] The exclusionary rule previously provided within N.D.C.C. § 39-20-
01(3)(b) applied only to tests administered under N.D.C.C. § 39-20-01. Because
the test at issue was administered under N.D.C.C. § 39-20-01.1, the
exclusionary rule did not apply, and the district court did not err in denying
Devine’s motion to suppress. Having concluded N.D.C.C. § 39-20-01.1 is
determinative, it is unnecessary to address the other issues raised by Devine.
We affirm the judgment.
[¶16] Jon J. Jensen, C.J.
Daniel J. Crothers
Gerald W. VandeWalle
Jerod E. Tufte
Lisa Fair McEvers
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