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City of Fargo v. Bakkerud4/8/1998
AFFIRMED.
Opinion of the Court by Sandstrom, Justice.
[ ] Allan Bakkerud entered a conditional guilty plea, under N.D.R.Crim.P. 11(a)(2), to driving while under the influence of alcohol. A judgment of conviction was entered on the guilty plea, and Bakkerud appealed from the trial court's order denying his motion to suppress evidence of his blood alcohol concentration. We hold the law enforcement officers did not deny Bakkerud a reasonable opportunity to secure an independent blood alcohol test, and we affirm the order denying Bakkerud's motion to suppress evidence.
I.
[ ] During the late evening of April 4, 1997, Fargo police officer Dale Stoll was dispatched to an accident scene. Bakkerud, who was driving one of the vehicles involved in the accident, was arrested by Stoll for driving while under the influence of alcohol. Police officer Joseph Johnson met Stoll and Bakkerud at the Fargo police station to administer an Intoxilyzer test. When Johnson discovered the simulator was not working properly, he and Stoll transported Bakkerud to the Cass County jail for the test. Before leaving the police station, Bakkerud requested an opportunity to call an attorney. A telephone and phone book were made available to him, and he tried unsuccessfully for 10 to 15 minutes to contact an attorney. Bakkerud testified he asked about taking an independent blood test while at the police station. Johnson testified he did not recall Bakkerud making any such inquiry at the police station, and Stoll testified Bakkerud made no inquiry about an independent test until after being transported to the jail.
[ ] At the jail, Johnson administered an Intoxilyzer test. While at the jail, Bakkerud inquired about getting a blood test at either Dakota Hospital or MeritCare Hospital, places where Bakkerud had medical insurance coverage. Johnson told Bakkerud the state toxicology lab no longer does independent tests and " he only place in town that does do independent tests which the way I understand hold evidentiary weight is Dakota Hospital and they're called medtox kits and they're quite expensive." Stoll heard Johnson tell Bakkerud Stoll "would take him to get an independent test done if he wanted one done." Stoll testified Bakkerud never requested he be taken anywhere for an independent test. At the jail, Bakkerud was again given a telephone and phone book to contact an attorney and a bail bondsman. There is no testimony Bakkerud either asked to call someone about administering an independent blood test or used the telephone for that purpose.
[ ] Based upon the results of the Intoxilyzer test, Bakkerud was charged with DUI. Bakkerud moved to suppress the test results, claiming the officers interfered with his right to take an independent test. The trial court denied the motion, and Bakkerud entered a conditional guilty plea and appealed.
[ ] The district court had jurisdiction under N.D. Const. Art. VI, Section 8, and N.D.C.C. Section 27-05-06(1). The appeal from the district court was filed in a timely manner under N.D.R.App.P. 4(b). This Court has jurisdiction under N.D. Const. Art. VI, Section 6, and N.D.C.C. Sections 29-01-12 and 29-28-06.
II.
[ ] N.D.C.C. Section 39-20-01 provides for testing to determine the alcohol content of a motorist's blood:
"Any person who operates a motor vehicle on a highway . . . in this state is deemed to have given consent . . . to a chemical test, or tests, of the blood, breath, saliva, or urine for the purpose of determining the alcohol . . . content of the blood. . . . The test or tests must be administered at the direction of a law enforcement officer only after placing the
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