¶1concurring, in part and dissenting in part.
¶2Although I agree with the Chief Justice’s analysis and answers to the two certified questions of law, I am concerned about the precedent established by considering the questions on their merits. This court has historically held that it will determine certified questions only when the issue will depend principally or wholly upon the construction of the law applicable thereto, and such construction or interpretation is in doubt and is vital or of great moment in the cause. See, e.g., Scranton Grain Co. v. Lubbock Machine & Supply Co., 175 N.W.2d 656 (N.D.1970). The majority opinion, without discussion, states that this court has “concluded that the determination of this case will depend principally upon the construction of law applicable to the questions certified” and proceeds to answer those questions.
¶3I am not convinced that the determination of this case will depend principally upon the construction of law applicable tó the certified questions. I assume that the majority opinion does not indicate that a conviction can be had for driving while under the influence of intoxicating beverages only if there is a chemical test which indicates that the defendant was under the influence. This court has previously upheld a conviction for DWI based on evidence other than that of the chemical test. See, e.g., State v. Glavkee, 138 N.W.2d 663 (N.D.1965). Whether or not such evidence is available in this instance is, of course, not known to us because there has been no trial. If such evidence is available it cannot be said that the determination of this case will depend principally upon the construction of law applicable to the certified questions. There is a reason for this court’s consistent refusal in the past to consider certified questions unless the determination of those questions will wholly or principally dispose of the issues in the case. The reason is that this court does not issue advisory opinions, and a determination of a certified question that does not wholly or principally dispose of the issues in the case would constitute an advisory opinion. See, e.g., Meckle v. Hoffman, 78 N.W.2d 166 (N.D.1956).
¶4I have yet another concern involving the court’s issuing an advisory opinion. Section 6 of Article VI of the North Dakota Constitution provides that appeals shall be allowed from decisions of lower courts to the Supreme Court as may be provided by law. The Legislature has determined that an order suppressing evidence may be appealed by the State to the Supreme Court when accompanied by a statement of the prosecuting attorney asserting that the deprivation of the use of the property ordered to be returned or suppressed or of a confession or admission ordered to be suppressed has rendered the proof available to the State insufficient as a matter of law or so weak in its entirety that any possibility of prosecuting the charge to a conviction has been effectively destroyed. Sec. 29-28-07(5), N.D.C.C. Presumably this right of appeal was enacted because any appeal by the State after acquittal, even though the order was found erroneous, would not permit a retrial of the defendant inasmuch as a retrial would twice place the defendant in jeopardy for the same offense contrary to Article 5 of the Amendments to the United States Constitution and Section 12, Article I, North Dakota Constitution. However, the defendant is not given the right to appeal an order denying a motion for suppression of evidence because, if he is convicted, he may raise that issue on appeal from the judgment of conviction. Since the decision in Mapp v. Ohio, 367 U.S. 643, 81 S.Ct. 1684, 6 L.Ed.2d 1081 (1961), evidence obtained by search and seizure violative of the Fourth Amendment to the United States Constitution is, by virtue of the Due Process Clause of the Fourteenth Amendment, inadmissible in State courts. State v. Matthews, 216 N.W.2d 90 (N.D.1974). This court has considered many cases since 1961 involving appeals by defendants from judgments of conviction in which motions to suppress evidence were denied prior to or during trial. Since the enactment of Section 29-28-07(5), N.D.C.C. (Ch. 294, Sec. 1, 1977 N.D.Sess. Laws), giving the State the right to appeal from an order suppressing evidence, this *758court has heard several such appeals by the State. It is apparent that in most instances it may be argued that the suppression or nonsuppression of evidence is vital to a criminal prosecution. In order that the State may appeal the Legislature has required the prosecuting attorney to file a statement to that effect. My fear is that the majority opinion has now created a new method whereby not only the prosecuting attorney but the defense attorney and the trial judge may request the advice of this court prior to trial. Although I agree with the merits of the issues which the majority opinion announces I must nevertheless dissent to that portion of the opinion which concludes that the certified questions should be answered by this court.