State v. Bell

                    IN THE SUPREME COURT
                    STATE OF NORTH DAKOTA

                                 

State of North Dakota,                                  Plaintiff and Appellant
      v.
Travis Dean Bell,                                      Defendant and Appellee



                                 No. 20250092

Appeal from the District Court of Grand Forks County, Northeast Central
Judicial District, the Honorable Theodore Sandberg, Judge.

REVERSED AND REMANDED.

Opinion of the Court by McEvers, Justice.

Rachel R. Egstad, Assistant State’s Attorney, Grand Forks, ND, for plaintiff and
appellant.

Drew J. Hushka (argued) and Mark A. Friese (on brief), Fargo, ND, for defendant
and appellee.
                                  State v. Bell
                                  No. 20250092

McEvers, Justice.

[¶1] The State appeals from a district court order granting Travis Bell’s motion
to suppress evidence of a chemical breath test and results. We conclude the court
misapplied the law and erred as a matter of law in its decision holding the State
failed to prove Bell voluntarily consented to the chemical breath test after being
informed of the implied consent advisory under N.D.C.C. § 39-20-01. We reverse
and remand for further proceedings consistent with this opinion.

                                        I

[¶2] On June 3, 2024, Bell was the driver of a vehicle in a traffic crash with
another vehicle at or near the intersection of Airport Road and Highway 2 in
Grand Forks County. Two individuals in the other vehicle were injured; one of
whom, a minor child, later died as a result of the injuries sustained in the crash.
Law enforcement and other first responders arrived at the crash scene, including
officers from the Grand Forks County Sheriff’s Office and City of Grand Forks
Police, along with the North Dakota Highway Patrol. The Highway Patrol took
the lead in investigating the incident. As part of the investigation, a Highway
Patrol trooper investigated Bell for driving under the influence and subsequently
conducted a chemical breath test to determine Bell’s blood alcohol content.

[¶3] In June 2024, the State filed an amended information charging Bell with
one count of criminal vehicular injury under N.D.C.C. § 39-08-01.2(2), and one
count of criminal vehicular homicide under N.D.C.C. § 39-08-01.2(1). Both of the
charges allege Bell committed the charged offenses while driving under the
influence under N.D.C.C. § 39-08-01. In December 2024, Bell moved the district
court to exclude the chemical breath test and results, arguing the evidence was
obtained contrary to statute and in violation of his due process rights. The State
opposed the motion. In February 2025, the district court held an evidentiary
hearing on Bell’s motion to suppress. The trooper, who conducted the chemical
breath test on Bell, testified at the hearing, and the trooper’s body-worn camera
video was also admitted into evidence.


                                        1
[¶4] In March 2025, the district court entered an order granting Bell’s motion
and suppressing the chemical breath test, the consent, and the results of the
chemical test. The State has appealed the district court’s order suppressing
evidence.

                                        II

[¶5] Under N.D.C.C. § 29-28-07, the prosecution’s right to appeal in a criminal
case is strictly limited. State v. Boehm, 

, 

. “The
State may appeal from an order suppressing evidence if the appeal is
‘accompanied by a statement of the prosecuting attorney asserting that the
appeal is not taken for purpose of delay and that the evidence is substantial proof
of a fact material in the proceeding.’” 

 (quoting N.D.C.C. § 29-28-07(5)). The
prosecution must support its appeal “with an explanation of the relevance of the
suppressed evidence,” and the prosecuting attorney’s “statement should not
merely paraphrase the requirements of N.D.C.C. § 29-28-07(5).” Boehm, ¶ 6
(quoting State v. Emil, 

, 

). The record reflects the
State filed a notice of appeal and a statement of the prosecuting attorney. The
statement of the prosecuting attorney asserts the “suppressed Intoxilyzer result
is a substantial proof of a material fact,” the test result is “often considered the
most objective and compelling evidence that a driver was ‘under the influence
of intoxicating liquor,’” and the appeal is not taken for purpose of delay. The
State complied with the requirements of N.D.C.C. § 29-28-07(5), and “a review
of the facts clearly demonstrates the relevance of the evidence suppressed.”
Boehm, ¶ 6 (quoting Emil, ¶ 6). The State may therefore appeal.

                                        III

[¶6] Our standard for reviewing a district court’s decision on a motion to
suppress is well established:

      We defer to the district court’s findings of fact and resolve conflicts
      in testimony in favor of affirmance. We will affirm a district court’s
      decision on a motion to suppress if there is sufficient competent
      evidence fairly capable of supporting the trial court’s findings, and
      the decision is not contrary to the manifest weight of the evidence.
      Our standard of review recognizes the importance of the district

                                         2
      court’s opportunity to observe the witnesses and assess their
      credibility. Questions of law are fully reviewable on appeal, and
      whether a finding of fact meets a legal standard is a question of law.

State v. Gothberg, 

, 

 (quoting State v. Casatelli,

, 

). We review questions of law under the de novo
standard of review. Id.; State v. Genre, 

, 

.

                                         IV

[¶7] The State argues the district court misapplied the law and a question of
law exists between the analysis of State v. Devine, 

, 

,
and N.D.C.C. § 39-20-01.1, in conjunction with implied consent and N.D.C.C. §§
39-20-01 and 39-08-01.

                                         A

[¶8] When interpreting a statute, our primary goal is to determine the
legislature’s intent by first looking to the statute’s plain language and attempting
to give each word, phrase, and sentence its ordinary meaning. State v. Long, 

, 

; Schulke v. Panos, 

, 

.
When a provision is unambiguous, we look to the plain language of the statute
to ascertain its meaning. Long, ¶ 6; State v. Comes, 

, 

; see also N.D.C.C. § 1-02-05 (“When the wording of a statute is clear and free
of all ambiguity, the letter of it is not to be disregarded under the pretext of
pursuing its spirit.”). “If a statute is ambiguous[,] a court may reference extrinsic
aids, such as legislative history, to interpret the statute.” Long, ¶ 6. “A statute is
ambiguous when it is susceptible to differing, but rational, meanings.” Id.
(quoting Schulke, ¶ 8).

[¶9] “Statutes are construed as a whole and harmonized to give meaning to
related provisions.” Long, 

 (quoting State v. Marcum, 

, 

). We consider the context of the statutes and the
purposes for which they are enacted. Id.; see also DeForest v. N.D. Dep’t of Transp.,

, 

. “We also consider the actual language, its
connection with other clauses, and the words or expressions which obviously are by
design omitted. In construing statutes and rules, the law is what is said, not what

                                          3
is unsaid, and the mention of one thing implies exclusion of another.” Long, ¶ 7
(emphasis added) (quoting State v. Welch, 

, 

).

                                          B

[¶10] Chapter 39-20, N.D.C.C., addresses chemical tests for intoxication and
implied consent for individuals who operate motor vehicles. At the outset, we
examine the interplay between N.D.C.C. § 39-20-01 and N.D.C.C. § 39-20-01.1.

[¶11] Under N.D.C.C. § 39-20-01(1), “[a]ny individual who operates a motor
vehicle on a highway . . . in this state is deemed to have given consent, and shall
consent, subject to the provisions of this chapter, to a chemical test, or tests, of the
blood, breath, oral fluid, or urine for the purpose of determining the alcohol
concentration or presence of other drugs, or combination thereof, in the
individual’s blood, breath, oral fluid, or urine.” (Emphasis added.) Section 39-
20-01 further provides, in part:

      2. The test or tests must be administered at the direction of a law
      enforcement officer only after placing the individual under arrest for
      violation of section 39-08-01 or an equivalent offense. . . . The law
      enforcement officer shall determine which of the tests is to be used.
      3. a. The law enforcement officer shall inform the individual 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 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.
         b. If an individual refuses to submit to testing under this section,
         proof of the refusal is not admissible in any administrative
         proceeding under this chapter if the law enforcement officer fails
         to inform the individual as required under subdivision a.

(Emphasis added.)

[¶12] Section 39-20-01.1, N.D.C.C., provides:

      1. If the driver of a vehicle is involved in a crash resulting in the
      death of another individual, and there is probable cause to believe that


                                           4
      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.
      2. If the driver of a vehicle is involved in a crash resulting in the
      serious bodily injury, as defined in section 12.1-01-04, of another
      individual, and 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 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.
      3. If the driver refuses to submit to a chemical test or tests of the driver’s
      blood, breath, or urine and exigent circumstances are not present,
      the law enforcement officer shall request a search warrant to compel 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.
      4. The approved methods of the director of the state crime laboratory
      or the director’s designee must be followed in collecting and
      preserving a sample of the driver’s blood, breath, or urine and
      conducting a chemical test or tests to determine the alcohol
      concentration or the presence of other drugs or substances, or both.

(Emphasis added.) See 2013 N.D. Sess. Laws, ch. 301, § 12 (effective July 1, 2013).

[¶13] In granting Bell’s suppression motion, the district court initially
considered whether N.D.C.C. §§ 39-20-01 and 39-20-01.1 are intended to “work
in concert” or are “separate and distinct,” such that only one of the statutes
controls the disposition of this case. The court concluded these statutes do not
“work in concert” and are “separate and distinct.” In reaching its conclusion, the
court relied, in part, on this Court’s decision in Devine, 

.

[¶14] In Devine, 

, we held the statutory exclusionary rule,
previously codified within N.D.C.C. § 39-20-01, did not apply to a chemical test
“administered under N.D.C.C. § 39-20-01.1.” In Devine, after having secured a
search warrant for a blood sample, law enforcement read Devine an incomplete
implied consent advisory, omitting the portion of the then-advisory that refusal
to submit to a urine or breath test was a crime punishable in the same manner as
driving under the influence. Id. ¶ 3. In denying Devine’s subsequent suppression

                                            5
motion, the district court held the blood-test results were admissible, reasoning
that because law enforcement had obtained a search warrant, it was unnecessary
to secure Devine’s consent after securing the warrant, and any deficiency in
reading the advisory was therefore immaterial. Id. ¶ 4. This Court affirmed, but
for a different reason. Id. ¶ 15.

[¶15] In affirming, we distinguished between whether the test was
“administered under” N.D.C.C. § 39-20-01 or N.D.C.C. § 39-20-01.1. Devine, 

. We held N.D.C.C. § 39-20-01.1 applies when a driver of a
vehicle is involved in a crash that results in the death or serious bodily injury of
another individual. Id. ¶¶ 12-13. We further held the statutory exclusionary rule,
as codified at the time in N.D.C.C. § 39-20-01(3)(b), was expressly limited to
testing “administered under this section,” i.e., N.D.C.C. § 39-20-01. Id. ¶ 14. We
therefore concluded the statutory language was unambiguous, applied the
statutory exclusionary rule “only to tests administered under N.D.C.C. § 39-20-
01,” and did not “extend the exclusionary rule to tests administered under
N.D.C.C. § 39-20-01.1.” Id.

[¶16] This Court, however, did not take an “either-or” approach in deciding
which statute applied. We merely stated, “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.” Devine,

 (emphasis added). We did not hold a case could not fall within
the scope of both N.D.C.C. §§ 39-20-01 and 39-20-01.1. Nor did we hold a
chemical test could not be “administered under” both N.D.C.C. §§ 39-20-01 and
39-20-01.1. We only held the former statutory exclusionary rule did not apply
because, under the facts of that case, the officer’s chemical test was administered
under N.D.C.C. § 39-20-01.1. Id.; cf. City of Fargo v. Hofer, 

, 

 (holding, despite obtaining a search warrant, because officer
administered the urine test under N.D.C.C. § 39-20-01, the officer was required
to inform defendant under N.D.C.C. § 39-20-01(3) for test results to be admissible
in a criminal proceeding under the then-statutory exclusion). Put another way,
the Devine case does not preclude an officer from administering a test under
section 39-20-01 when a crash results in a death or serious bodily injury; it only
held the former statutory exclusionary rule did not apply to a chemical test

                                         6
administered under section 39-20-01.1. Devine, ¶¶ 14-15. The question of whether
the defendant had “consented” to the blood test was not presented; the issue was
whether the blood test was admissible given the incomplete implied consent
advisory. Moreover, because the statutory exclusionary rule has since been
removed from section 39-20-01, the Devine case has no application here.

[¶17] The State argues the district court erred in holding N.D.C.C. §§ 39-20-01
and 39-20-01.1 do not work in concert. The State’s position is the implied consent
advisory under N.D.C.C. § 39-20-01(3)(a) must be given before a chemical test
can be administered, including a chemical test requested under N.D.C.C. § 39-
20-01.1, and that section does not remove the requirement an officer give a driver
the advisory, regardless of whether it involves a misdemeanor DUI charge or the
potential for a charge of DUI resulting in serious bodily injury or death. The State
argues the statutes were meant to work in concert, and section 39-20-01.1 alters
section 39-20-04(1) in cases of serious bodily injury or death because the evidence
is so important the officer should seek a search warrant. The State contends the
purpose of section 39-20-01.1 is simply to modify the “legislative grace” of a
driver’s right to refuse under section 39-20-04 in that section 39-20-01.1 “takes
away the person’s legislative grace to refuse chemical testing by instructing law
enforcement to obtain a search warrant.”

[¶18] The history of N.D.C.C. § 39-20-01.1 supports the conclusion that sections
39-20-01 and 39-20-01.1 must be read in conjunction with each other. The
legislature enacted section 39-20-01.1 in 1987, which at the time provided:

      Notwithstanding section 39-20-01 or 39-20-04, when the driver of a
      vehicle is involved in an accident resulting in the death or serious
      bodily injury, as defined in section 12.1-01-04, of another person, and
      there is probable cause to believe that the driver is in violation of
      section 39-08-01, the driver may be compelled by a police officer to
      submit to a test or tests of the driver’s blood, breath, saliva, or urine
      to determine the alcohol concentration or the presence of other
      drugs or substances.

1987 N.D. Sess. Laws ch. 460, § 10 (emphasis added). Section 39-20-01.1’s plain
language in 1987 provided that when a police officer, in the officer’s discretion,



                                         7
was allowed to compel a driver to submit to a test without a search warrant and
“[n]otwithstanding sections 39-20-01 or 39-20-04.”

[¶19] In State v. Hansen, this Court construed the 1987 version of N.D.C.C. § 39-
20-01.1, in conjunction with the implied-consent statutes requiring an arrest
before a test may be given. 

 (N.D. 1989). The Court held
that despite using the language “probable cause to believe that the driver is”
under the influence, section 39-20-01.1 also required an arrest, not just probable
cause. This Court held the section was subject to two reasonable interpretations
and ambiguous, examined the statute’s legislative history, and concluded “a
serious constitutional question arises” if the section were to be interpreted not to
require an arrest. 

; see also Wilhelmi v. Dir. of Dep’t of Transp., 

 (N.D. 1993) (discussing the Hansen holding requiring an arrest under
N.D.C.C. § 39-20-01.1). As this Court explained, section 39-20-01.1 “was designed
to create an exception to our implied-consent law that prohibits chemical testing
for blood-alcohol content when an individual chooses to refuse.” Hansen, at 332;
see also N.D.C.C. § 39-20-04. This Court explained:

      Because the United States Supreme Court in Schmerber [v. California,
      

 (1966)] clearly held that a test may be taken even in
      those instances in which the person arrested refuses a test, we have
      no doubt that the intent of Section 39-20-01.1 was to withdraw from
      a driver involved in an accident resulting in death or serious bodily
      injury the right to refuse the chemical test. North Dakota has always
      required an arrest before the chemical test may be taken unless there
      is voluntary consent to the test without an arrest. State v.
      Abrahamson, 

 (N.D. 1982). We conclude that if the
      Legislature intended to require the test without an arrest, it would
      have specifically so stated.

Hansen, at 333. Cf. Birchfield v. North Dakota, 

 (2016) (observing,
“Under current North Dakota law, only in cases involving an accident that
results in death or serious injury may blood be taken from arrestees who resist.
Compare 

(1), 39-20-01, with § 39-20-01.1.”). The
Court in Hansen further concluded the words “notwithstanding section 39-20-01
or 39-20-04” did not abrogate the requirement the person be arrested before
being forced to submit to a chemical test. Hansen, at 333.

                                           8
[¶20] In 2009, the legislature amended N.D.C.C. § 39-20-01.1 to read:

      1. Notwithstanding section 39-20-01 or 39-20-04, when the driver of a
      vehicle is involved in an accident resulting in the death of another
      person, and there is probable cause to believe that the driver is in
      violation of section 39-08-01 or has committed a moving violation as
      defined in section 39-06.1-09, the driver must be compelled by a police
      officer to submit to a test or tests of the driver’s blood, breath, or
      urine to determine the alcohol concentration or the presence of other
      drugs or substances.
      2. Notwithstanding section 39-20-01 or 39-20-04, when the driver of a
      vehicle is involved in an accident resulting in the serious bodily
      injury, as defined in section 12.1-01-04, of another person, and there
      is probable cause to believe that the driver is in violation of section
      39-08-01, a law enforcement officer may compel the driver to submit
      to a test or tests of the driver’s blood, breath, or urine to determine
      the alcohol concentration or the presence of other drugs or
      substances. The methods and techniques established by the director
      of the state crime laboratory must be followed in collecting and
      preserving a specimen or conducting a test.

2009 N.D. Sess. Laws. ch. 339, § 1 (emphasis added). In the 2009 version, the
legislature divided N.D.C.C. § 39-20-01.1 into two subsections, with subsection
1, requiring “the driver must be compelled by a police officer to submit to a test
or tests of the driver’s blood, breath, or urine” when an accident results in the
death of another; and subsection 2 providing “a law enforcement officer may
compel the driver to submit to a test or tests of the driver’s blood, breath, or
urine” when an accident results in serious bodily injury. Under subsection 1, the
legislature removed an officer’s discretion to decide whether to “compel” the
driver to submit to a chemical test.

[¶21] In 2013, the legislature amended N.D.C.C. § 39-20-01.1 to its present form,
as set forth above. In this version, the legislature specifically removed the phrase,
“[n]otwithstanding section 39-20-01 or 39-20-04,” and added the language, “shall
request,” to both subsections 1 and 2. The legislature added subsection 3, which
provides the law enforcement officer “shall request a search warrant to compel
a driver to submit” to a chemical test when a driver “refuses” to submit to a
chemical test and exigent circumstances are not present. The section’s plain


                                         9
language thus removes an officer’s discretion whether to request a test; requires
an officer first to “request” before compelling a driver to submit to a chemical
test; and requires the officer to seek a search warrant to “compel” a test when the
“exigent circumstances” exception does not apply.

[¶22] As noted, the legislature removed “[n]otwithstanding section 39-20-01 or
39-20-04,” from section 39-20-01.1(1) and (2). Generally, the ordinary meaning of
“notwithstanding” is “despite,” “in spite of,” or “without prevention or
obstruction from or by.” See N.L.R.B. v. SW Gen., Inc., 

 (2017)
(citing Webster’s Third New International Dictionary 1545 (1986); Black’s Law
Dictionary 1091 (7th ed. 1999) (“Despite; in spite of”)); see also Black’s Law
Dictionary 1277 (12th ed. 2024). “In statutes, the word [notwithstanding] ‘shows
which provision prevails in the event of a clash.’” N.L.R.B. at 301 (quoting A.
Scalia & B. Garner, Reading Law: The Interpretation of Legal Texts 126-27 (2012)).
“A ‘notwithstanding’ clause does not naturally give rise to such an inference; it
just shows which of two or more provisions prevails in the event of a conflict.
Such a clause confirms rather than constrains breadth.” 

. “When the
Legislature intends for a statute to prevail over all contrary law, it typically
signals this intent by using phrases like ‘notwithstanding any other law’ or
‘notwithstanding other provisions of law.’” Hohenshelt v. Superior Ct. of Los
Angeles Cnty., 

, 955 (Cal. 2025).

[¶23] Accordingly, by removing the “notwithstanding” clauses from N.D.C.C. §
39-20-01.1, the legislature signaled its intent that requests for chemical tests
under section 39-20-01.1(1) and (2) do not abrogate or operate to the exclusion of
an officer’s direction to take a chemical test under section 39-20-01. “We construe
statutes in a way which does not render them meaningless because we presume
the Legislature acts with purpose and does not perform idle acts.” Meier v. N.D.
Dep’t of Hum. Servs., 

, 

.

[¶24] To the extent the Hansen case applies an earlier version, we conclude it still
stands for the proposition that N.D.C.C. § 39-20-01.1’s continued use of the
language, “probable cause to believe that the driver is in violation of section 39-
08-01,” requires an arrest before requesting a chemical test and that the section
operates to withdraw a driver’s “legislative grace” or right to refuse a chemical


                                        10
test provided under N.D.C.C. § 39-20-04. However, in the absence of exigent
circumstances, the officer must obtain a search warrant to “compel” a test,
satisfying reasonableness under the Fourth Amendment. State v. Morales, 

, 

. By removing the “notwithstanding” clauses in
subsections 1 and 2, and consistent with Hansen, the statute does not operate to
abrogate or exclude requirements of N.D.C.C. § 39-20-01 or N.D.C.C. § 39-20-04.
Rather, these statutes must be read in conjunction with each other.

[¶25] The State argues the implied consent advisory under N.D.C.C. § 39-20-01
must still be given, even when an officer requests a chemical test under section
39-20-01.1. On its face, section 39-20-01.1 does not require an advisory be given
before requesting a chemical test; however, an officer may initially be proceeding
under both sections early in a DUI investigation. It is when a driver refuses to
submit to a chemical test that an officer has differing statutory obligations
whether to continue seeking a chemical test. Generally, “[t]he implied consent
advisory establishes that consent to testing is presumed,” and “[t]his
presumption is tempered by legislative grace allowing a driver to opt out of
testing.” City of Jamestown v. Nygaard, 

, 

 (quoting
Grosgebauer v. N.D. Dep’t of Transp., 

, 

). In
Alvarado v. North Dakota Department of Transportation, this Court specifically held
that a driver’s refusal requires “a valid request to submit to testing pursuant to
N.D.C.C. § 39-20-01.” 

, ¶ 5, 

.

[¶26] In Jundt v. North Dakota Department of Transportation, we discussed the
present version of N.D.C.C. § 39-20-01(3)(b) and the legislature’s 2019
amendments removing the statutory exclusionary rule:

      In the 2019 amendments, the legislature removed the consequences
      for failing to read the implied consent advisory from N.D.C.C. § 39-
      20-01(3)(b) unless the individual refuses a chemical test. The failure
      to read the advisory is significant in an administrative proceeding if
      the individual refuses a chemical test. The penalty for failing to read
      the implied consent advisory no longer applies when the individual
      consents to a chemical test.




                                        11


, ¶ 16, 

. We further noted that “[u]nder N.D.C.C. §
39-20-01(1), an individual consents to chemical testing by operating a motor
vehicle” and that “[t]he implied consent advisory allows an individual to
withdraw his or her consent and say ‘no’ to a chemical test.” Id. ¶ 17. “However,
when an arrested person agrees to chemical testing, the implied consent
requirements of N.D.C.C. § 39-20-01 do not apply.” Id. Similarly, while N.D.C.C.
§ 39-20-01.1(3) governs a law enforcement officer’s actions when a driver refuses
the request to submit to a chemical test under N.D.C.C. § 39-20-01.1(1) or (2), the
requirements of subsection 3 do not apply when the driver agrees to take the
requested chemical test.

[¶27] Here, Bell consented to the chemical tests; therefore, the dispositive issue
on appeal is whether the district court erred in finding his consent was coerced
and not voluntarily obtained.

                                        V

[¶28] The State argues Bell freely and voluntarily consented to the chemical test
for intoxication after being properly informed of the implied consent advisory
under N.D.C.C. § 39-20-01. Bell argues the district court correctly suppressed the
chemical breath test evidence when the State failed to establish his consent to the
chemical test was voluntary.

                                        A

[¶29] “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, protect individuals from unreasonable searches and
seizures.” Gothberg, 

 (quoting State v. Terrill, 

,

). “[A]dministration of a breath test to determine alcohol
consumption is a search.” McCoy v. N.D. Dep’t of Transp., 

, 

; see also Skinner v. Railway Labor Execs.’ Ass’n, 

(1989). “Warrantless searches are unreasonable unless they fall within a
recognized exception to the warrant requirement.” Gothberg, ¶ 11 (quoting Genre,

). “Absent an exception to the warrant requirement, the
exclusionary rule requires suppression of evidence obtained in violation of the


                                        12
federal and state constitutions’ protections against warrantless searches or
seizures.” Morales, 

; see also State v. Schmidt, 

,

. “Exceptions to the warrant requirement include consent and
exigent circumstances.” Morales, ¶ 8.

[¶30] Consent is one exception to the warrant requirement, provided the consent
is voluntary. State v. Fleckenstein, 

, 

. The State has
the burden of proof to show voluntariness. 

 “A district court must determine
whether the consent was voluntary under the totality of the circumstances.”
Schmidt, 

 (cleaned up). We have articulated two
nondeterminative considerations for a court’s inquiry on whether consent is
voluntary:

      Consent is voluntary when it is the product of a free and
      unconstrained choice and not the product of duress or coercion, and
      to decide whether consent is voluntary we consider: (1) the
      characteristics and condition of the accused at the time of the
      consent, including age, sex, race, education level, physical or mental
      condition, and prior experience with police; and (2) the details of the
      setting in which the consent was obtained, including the duration
      and conditions of detention, police attitude toward the defendant,
      and the diverse pressures that sap the accused’s powers of resistance
      or self-control.

Id. ¶ 24 (cleaned up) (quoting State v. Torkelsen, 

, 

); see also Fleckenstein, ¶ 6. “Whether an officer has consent is a question of
fact.” Schmidt, ¶ 23 (quoting State v. Albaugh, 

, 

);
see also Gothberg, 

 (“The existence of consent is a question of
fact to be determined from the totality of the circumstances.” (citation omitted)).
While we will give “great deference” to a district court’s voluntariness
determination because the court is in a superior position to judge credibility and
weight, Schmidt, ¶ 24, we have also said whether a finding of fact meets a legal
standard presents a question of law, fully reviewable on appeal. Gothberg, ¶ 10;
cf. State v. Hahne, 

, 

 (reversing and remanding
when the district court based its suppression order decision on an erroneous
view of the law and applied an incorrect legal standard).



                                        13
[¶31] The State argues the district court erred in finding that Bell did not
voluntarily consent to the chemical test and that he was coerced when he was
advised he would be criminally charged with a crime if he refused. The State
contends the evidence shows Bell was confused by the implied consent advisory
when the trooper read it to him and he submitted to the preliminary breath test
after a rereading of the advisory. The State asserts the evidence shows that, later
at the correctional facility, when the trooper asked him to submit to the
Intoxilyzer test and advised him under N.D.C.C. § 39-20-01, Bell responded, “I
deny it.” The trooper then advised Bell of the additional penalties for refusal of
a test, engaged in a conversation on the difference between the preliminary
breath test and the chemical test, and read the implied consent advisory a second
time after Bell asked to hear it again, after which Bell consented and said, “yes.”
The State contends there was no “second refusal” when the trooper and Bell had
the conversation and Bell himself requested the trooper to read the implied
consent advisory once more. The State argues Bell cannot claim coercion when
he requested the advisory be read multiple times.

[¶32] Bell responds that the district court properly found he initially refused the
trooper’s chemical test request and only “consented” when the trooper then
threatened Bell with additional criminal charges for refusing. He argues the
court did not err when it found, based on the totality of the circumstances, Bell’s
eventual “consent” was not voluntary and considered the trooper’s actions after
Bell’s initial refusal as part of the inquiry.

[¶33] Bell asserts that the trooper misrepresented the law in giving him the
implied consent advisory and did not “accurately advise” him that refusing to
submit to the requested chemical test was a crime which carried additional
penalties. He argues an individual only commits the offense of refusal under
N.D.C.C. § 39-08-01(1)(a)(5)(b) when the person refuses a valid chemical test
request “at the direction of law enforcement under section 39-20-01,” and the
statute’s plain language does not criminalize the refusal if the chemical test is
requested under another statutory provision, i.e., section 39-20-01.1. He contends
his refusal to submit to the trooper’s chemical test request was not criminal
because the trooper requested a chemical test under section 39-20-01.1, not



                                        14
section 39-20-01—a distinction he argues purportedly recognized in the Devine
case.

[¶34] Bell also argues N.D.C.C. § 39-20-01.1(3) required the trooper to seek a
warrant, rather than threaten him with “nonexistent criminal penalties.” He
argues this case is analogous to State v. Hawkins, 

, 

 (affirming suppression of chemical test evidence based on totality of
circumstances, including unlawful threat of criminal charges). Bell asserts the
trooper arrested him for DUI, handcuffed him, and placed him in the back of a
patrol car; he initially refused chemical testing; and he only acquiesced when the
trooper inaccurately threatened that refusal was a crime. He asserts sufficient
competent evidence supports the district court’s findings and its decision is not
contrary to the manifest weight of the evidence. See id. ¶ 6.

[¶35] This Court has explained that after the United States Supreme Court’s
decision in Birchfield, 

, our decisions in McCoy, 

,
and State v. Fetch, 

, 

, “still stand for the
proposition that reading an accurate implied consent advisory does not
constitute per se coercion and that voluntariness of consent must be determined
by the totality of the circumstances.” Fleckenstein, 

; see also City of
Jamestown v. Hanson, 

, 

 (“[A]n officer’s reading
of the advisory does not, by itself, constitute coercion.”). This Court has also held
that under N.D.C.C. § 39-08-01(1)(f) [recodified at N.D.C.C. § 39-08-01(1)(a)(6) in
2023] “claims of coercive implied consent advisories must be measured by
constitutional standards rather than under the former statutory exclusionary
rule.” Nygaard, 

 (quoting City of Jamestown v. Casarez, 

, 

).

[¶36] Here, the trooper gave the implied consent advisory and administered the
chemical breath test under N.D.C.C. § 39-20-01. If the trooper gave Bell an
accurate implied consent advisory for section 39-20-01, which included advising
Bell of the potential criminal charge under N.D.C.C. § 39-08-01(1)(a)(5) for
refusing a chemical test under N.D.C.C. § 39-20-01, that would not constitute per
se coercion. The issue, therefore, includes whether a separate refusal charge may
be included in a case that may also involve N.D.C.C. § 39-20-01.1.


                                         15
                                         B

[¶37] Section 39-08-01, N.D.C.C., “unambiguously provides committing DUI
[driving under the influence] or APC [actual physical control] by being under
the influence of an intoxicating liquor and refusing to submit to a chemical test
are separate offenses and not alternative methods of committing DUI or APC.”
State v. Tompkins, 

, 

. For noncommercial motor
vehicles, section 39-08-01(1)(a) and (2) provide the offense for refusing to submit
to a chemical test under section 39-20-01, stating in relevant part:

      1. a. A person may not drive or be in actual physical control of any
         vehicle upon a highway or upon public or private areas to which
         the public has a right of access for vehicular use in this state if any
         of the following apply:
                    ....
             (5) That individual refuses to submit to any of the following:
                           ....
                    (b) A chemical test, or tests, of the individual’s blood,
                    breath, or urine to determine the alcohol concentration
                    or presence of other drugs, or combination thereof, in
                    the individual’s blood, breath, or urine, at the direction
                    of a law enforcement officer under section 39-20-01.
             (6) Paragraph 5 does not apply to an individual unless the
             individual has been advised of the consequences of refusing a
             chemical test consistent with the Constitution of the United
             States and the Constitution of North Dakota.
                    ....
      2. An individual who operates a motor vehicle on a highway or on
      public or private areas to which the public has a right of access for
      vehicular use in this state who refuses to submit to a chemical test,
      or tests, required under section . . . 39-20-01, is guilty of an offense
      under this section.

[¶38] The State argues the Devine case did not address whether a person may be
charged with refusal under N.D.C.C. § 39-08-01 in cases involving N.D.C.C. § 39-
20-01.1, and that such a reading of Devine is overly broad. We agree. As
discussed, the Devine case does not stand for the proposition chemical tests may
only be “administered under” either N.D.C.C. § 39-20-01 or N.D.C.C. § 39-20-
01.1, because Devine only addressed whether the former statutory exclusionary

                                         16
rule applied. Further, N.D.C.C. § 39-20-01 and N.D.C.C. § 39-20-01.1 are intended
to apply in conjunction with each other. The plain language of N.D.C.C. § 39-20-
01.1 does not state the provisions of N.D.C.C. § 39-20-01 cease to apply. Rather,
as in the statute’s earlier versions, the language only modifies the “legislative
grace” or right to refuse under N.D.C.C. § 39-20-04(1) (“If a person refuses to
submit to testing under section 39-20-01 or 39-20-14, none may be given . . . .”).
In its current version, when the driver refuses to submit to a chemical test,
N.D.C.C. § 39-20-01.1(3) requires the officer to seek a search warrant “to compel
the driver to submit to a chemical test” when exigent circumstances are not
present.

[¶39] Moreover, this Court held “refusal to submit to a chemical test is a separate
offense [under N.D.C.C. § 39-08-01(1)(a)(5)] from driving or being in actual
physical control while under the influence of intoxicating liquor.” Tompkins, 

. Because refusal under N.D.C.C. § 39-08-01(1)(a)(5) constitutes a
separate offense, a driver may be charged with refusal even when N.D.C.C. § 39-
20-01.1 also applies and the driver is subsequently charged under N.D.C.C. § 39-
08-01.2, as long as the law enforcement officer also directed the individual to take
a chemical test under N.D.C.C. § 39-20-01 and the individual refused to submit
to the test.

[¶40] In its suppression order, we conclude the district court misapplied the law
by holding that N.D.C.C. §§ 39-20-01 and 39-20-01.1 are separate and distinct and
do not operate in conjunction with each other, and that only N.D.C.C. § 39-20-
01.1 controls this case. As explained, however, both statutes may have
application in an investigation, and it is a driver’s refusal to submit to a chemical
test that results in a differing statutory obligation governing how a law
enforcement officer must proceed. The court further erred in its analysis in
addressing the argument “section 39-20-01 controls at least up to the point that
law enforcement makes the determination to charge the Defendant with criminal
vehicular injury/death.”

[¶41] On this point, the district court made a number of factual findings
regarding the trooper’s testimony the investigation was only a “standard” DUI
investigation. The court found that it was “inconceivable and not credible” the


                                         17
trooper believed the investigation of Bell was only “a standard DUI
investigation” and that the facts “clearly establish” the trooper knew this was
not a standard traffic crash or a normal case. The court’s findings regarding the
trooper’s belief regarding the type of investigation, however, are not
determinative of which statute “controls” and are irrelevant because the court
erred as a matter of law in concluding “the entire legal analysis of this motion
must be under the dictates of Section 39-20-01.1, and not Section 39-20-01.”

[¶42] The district court further erred in its analysis of N.D.C.C. § 39-20-01.1,
concluding it required law enforcement either obtain consent or a search
warrant, “and there is no third option.” While the court correctly noted this case
does not include an assertion of exigent circumstances, N.D.C.C. § 39-20-01.1
does not preclude law enforcement from compelling a chemical test based on the
“exigent circumstances” exception to the warrant requirement. Moreover,
because Bell purportedly consented to take the test, N.D.C.C. § 39-20-01.1(3)
would not apply so as to require a search warrant in this case.

[¶43] While the district court considered all of the evidence presented at the
hearing and based its decision on the totality of the circumstances, the court
erred as a matter of law in its predominant findings that the trooper’s giving of
the implied consent advisory coerced Bell into consenting to the test. As
discussed, both N.D.C.C. §§ 39-20-01 and 39-20-01.1 may be applied in
conjunction with an investigation, refusal under N.D.C.C. § 39-08-01(1)(a)(5)
constitutes a separate offense, and “reading an accurate implied consent
advisory does not constitute per se coercion.” See State v. Vetter, 

, 

; Fleckenstein, 

. Because the trooper in this
case administered the chemical breath test under N.D.C.C. § 39-20-01, an
accurate implied consent advisory under this section would not be coercive.

[¶44] Here, the district court’s factual findings also show its determination that
Bell’s consent was involuntary and coerced were guided by the erroneous view
Bell could not be charged with refusal of a test under N.D.C.C. § 39-20-01 because
N.D.C.C. § 39-20-01.1 exclusively controlled this case, to the exclusion of
N.D.C.C. § 39-20-01. Specifically, the court found Bell “was coerced because in
large part he was wrongly informed his consent was required and that he would


                                       18
be criminally charged with another crime if he refused”; Bell “did not finally
consent until [the trooper] told him one last time that he was going to be charged
with an additional charge”; “the evidence clearly shows it was the threat of
additional criminal charges which forced [Bell] to provide a test”; and Bell’s
“refusal was overcome by the repeated threat of further criminal sanction which
was legally false.” The court therefore erred as a matter of law in these findings.

[¶45] We have stated “[t]he implied consent statutes are intended to encourage,
rather than discourage, taking the screening and chemical tests,” and have “long
interpreted the implied consent statutes to provide for a driver’s ability to ‘cure’
a refusal to take a chemical test by later agreeing to take the same test.”
Skobodzinski v. N.D. Dep't of Transp., 

, 

. The
trooper’s giving of an accurate implied consent advisory, including discussing
and repeating the advisory, would not necessarily constitute coercion when the
trooper was administering the test under N.D.C.C. § 39-20-01. Because the
district court misapplied the law in construing and applying N.D.C.C. §§ 39-20-
01 and 39-20-01.1, and erred as a matter of law in its factual findings to reach its
decision to suppress the evidence, we reverse the suppression order.

[¶46] As discussed, “reading an accurate implied consent advisory does not
constitute per se coercion” and “voluntariness of consent must be determined by
the totality of the circumstances.” Vetter, 

 (citation omitted). But,
we have also said, “’[c]oercive police activity is a necessary predicate’ to a
finding that purported consent was not voluntary,” 

 ¶ 9 (quoting State v.
Webster, 

, 

), and “[w]hether consent is voluntary
is a question of fact.” 

 (citing Hawkins, 

). The district court did
not properly consider the totality of the circumstances and misapplied the law
about the implied consent advisory in its decision. We therefore remand for
additional findings and a determination of the voluntariness of Bell’s consent
based upon the totality of the circumstances considering the correct application
of law regarding use of an accurate implied consent advisory.




                                         19
                                      VI

[¶47] The district court order suppressing evidence is reversed, and the case is
remanded for further proceedings consistent with this opinion.

[¶48] Jon J. Jensen, C.J.
      Daniel J. Crothers
      Lisa Fair McEvers
      Jerod E. Tufte
      Douglas A. Bahr




                                      20