FILED
IN THE OFFICE OF THE
CLERK OF SUPREME COURT
JULY 7, 2023
STATE OF NORTH DAKOTA
IN THE SUPREME COURT
STATE OF NORTH DAKOTA
2023 ND 125
State of North Dakota, Plaintiff and Appellee
v.
Bret Nathaniel Tho Sullivan, Defendant and Appellant
No. 20220337
Appeal from the District Court of Burleigh County, South Central Judicial
District, the Honorable Pamela A. Nesvig, Judge.
AFFIRMED.
Opinion of the Court by Tufte, Justice.
Omid Kardoust, Assistant State’s Attorney, Bismarck, N.D., for plaintiff and
appellee.
Chad R. McCabe, Bismarck, N.D., for defendant and appellant.
State v. Sullivan
No. 20220337
Tufte, Justice.
[¶1] Bret Sullivan appeals from a corrected criminal judgment after he pled
guilty to driving under the influence in violation of section 39-08-01(1)(a),
N.D.C.C. We affirm.
[¶2] Corporal Harold Rochester stopped Sullivan’s vehicle because it was
speeding and failed to remain in its lane. Corporal Justin Hoag was called to
assist Rochester. Hoag decided to arrest Sullivan because of the information
Rochester told him and because Sullivan’s vehicle emitted an alcoholic odor,
Sullivan had glossy and bloodshot eyes, and he admitted to having consumed
alcohol.
[¶3] Sullivan moved to suppress the evidence resulting from the arrest, and
the court denied his motion. On appeal, Sullivan argues the court erred in
finding that he received a sufficient advisement regarding the cause of his
arrest under N.D.C.C. § 29-06-17 and in finding that the officers had probable
cause to arrest him.
I
[¶4] Our standard of review for a district court’s ruling on a motion to
suppress is well established.
When reviewing a district court’s ruling on a motion to
suppress, we defer to the district court’s findings of fact and resolve
conflicts in testimony in favor of affirmance. We affirm the district
court’s decision unless we conclude there is insufficient competent
evidence to support the decision, or unless the decision goes
against the manifest weight of the evidence.... While the
underlying factual disputes are findings of fact, whether the
findings support a reasonable and articulable suspicion presents a
question of law which is fully reviewable on appeal.
State v. Suelzle, 2021 ND 194, ¶ 9,
965 N.W.2d 855 (quoting State v. James,
2016 ND 68, ¶ 5,
876 N.W.2d 720).
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II
[¶5] Sullivan argues that the police officer who arrested him violated section
29-06-17, N.D.C.C., because the officer did not inform Sullivan of the cause of
his arrest. He argues suppression of the evidence is the proper remedy for a
violation of this statute. The State argues that Sullivan was sufficiently
informed under the statute because the circumstances of his arrest provided
him with adequate notice and, alternatively, that the exception in N.D.C.C.
§ 29-06-17(1) applies to this case and the officer was not required to inform
Sullivan of the cause of his arrest.
[¶6] Section 29-06-17, N.D.C.C., provides:
When making an arrest without a warrant, the officer shall
inform the person to be arrested of the officer’s authority and the
cause of the arrest, unless:
1. The person to be arrested then is engaged in the
commission of an offense;
2. Such person is pursued immediately after the commission
of an offense or after an escape;
3. Such person flees or forcibly resists before the officer has
opportunity so to inform the person; or
4. The giving of such information will imperil the arrest.
[¶7] We conclude that the officers were not required to inform Sullivan of the
cause of his arrest because the first statutory exception applies.
[¶8] Sullivan was arrested while he was engaging in the commission of an
offense. Individuals under age twenty-one are guilty of an infraction when they
“consume or have recently consumed,” are under the influence of, or are in the
possession of an alcoholic beverage. N.D.C.C. § 5-01-08(1). An infraction is an
offense. N.D.C.C. § 12.1-32-01(7).
[¶9] Sullivan was driving a motor vehicle on a public road when he was
stopped for speeding. Sullivan told Corporal Hoag that he was under age
twenty-one at the time and had been consuming alcohol. There is sufficient
evidence in the record to support the finding that Sullivan was engaging in the
commission of an offense under N.D.C.C. § 5-01-08. The exception in N.D.C.C.
2
§ 29-06-17(1) therefore applies, and we need not consider the State’s argument
that the circumstances and context were sufficient to inform Sullivan of the
cause of the arrest or Sullivan’s argument that suppression is the proper
remedy for a violation of this statute.
III
[¶10] Sullivan argues that the arresting officers violated his constitutional
rights under the Fourth Amendment to the United States Constitution and
Article I, section 8 of the North Dakota Constitution because there were not
sufficient facts to support a finding of probable cause that he was driving under
the influence of alcohol before his arrest.
[¶11] Whether the facts rise to the level of probable cause to arrest is a
question of law we review de novo. State v. Boehm, 2014 ND 154, ¶ 8,
849
N.W.2d 239. The Fourth Amendment to the United States Constitution,
applicable to the states under the Fourteenth Amendment, and Article I,
section 8 of the North Dakota Constitution prohibit unreasonable searches and
seizures. N.D. Const. art. I, § 8; U.S. Const. amend. IV; see also State v.
Morales,
2015 ND 230, ¶ 8,
869 N.W.2d 417. “An arrest is a seizure under the
Fourth Amendment, and must be supported by probable cause.” State v.
Terrill,
2018 ND 78, ¶ 7,
908 N.W.2d 732. All that is necessary to establish
probable cause “is knowledge that would furnish a prudent person with
reasonable grounds for believing a violation has occurred.”
Id.
[¶12] There is probable cause to arrest a driver for driving under the influence
of alcohol if a police officer first observes some signs of physical or mental
impairment and also has reason to believe the driver’s impairment is caused
by alcohol. Boehm,
2014 ND 154, ¶ 12. “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.” Id. at ¶ 13. This Court determined there
was probable cause that a person was driving under the influence when the
individual had red and bloodshot eyes, admitted to consuming an alcoholic
beverage, and failed the HGN test. Id. at ¶ 15 (citing Brewer v. Ziegler, 2007
3
ND 207, ¶ 21,
743 N.W.2d 391). “A traffic violation and erratic driving are
relevant factors in determining whether probable cause exists to arrest for an
alcohol-related traffic offense.” Moran v. North Dakota Dep’t of Transp.,
543
N.W.2d 767, 770 (N.D. 1996) (citing Mayo v. Moore,
527 N.W.2d 257, 259-60
(N.D. 1995)).
[¶13] Here, there was sufficient evidence to support the district court’s finding
that Corporal Hoag had probable cause to arrest Sullivan for driving under the
influence. Hoag testified that he smelled the odor of alcohol emitting from
Sullivan’s vehicle, that Sullivan had bloodshot eyes or “red and glossy eyes,”
and that Sullivan admitted he had “drank a few beers.” Finally, according to
Hoag, Corporal Rochester observed Sullivan’s vehicle speeding and failing to
maintain its own lane. On our de novo review, we conclude these facts rise to
the level of probable cause.
IV
[¶14] We affirm.
[¶15] Jon J. Jensen, C.J.
Daniel J. Crothers
Lisa Fair McEvers
Jerod E. Tufte
Douglas A. Bahr
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