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City of Fargo v. Erickson7/29/1999
Appeal from the District Court of Cass County, East Central Judicial District, the Honorable Lawrence A. Leclerc, Judge.
AFFIRMED.
Opinion of the Court by Kapsner, Justice.
[ ] Timothy Curtis Erickson appeals from a trial court judgment of conviction finding him guilty of driving under the influence of alcohol. Erickson asserts the trial court erred in admitting evidence that he consented to take a roadside alcohol- screening test. We conclude the trial court erred in admitting the evidence, but the error does not require reversal of Erickson's conviction. We therefore affirm.
I.
[ ] On May 7, 1998, Erickson was arrested by a Fargo police officer for driving under the influence of alcohol. Before arresting Erickson, the officer administered numerous field-sobriety tests and an Alcohol Level Evaluation Roadside Tester (A.L.E.R.T.) screening test. Erickson was taken to the hospital for a blood test within one hour after he was stopped. The blood test showed a blood-alcohol level of .19 percent.
[ ] Erickson filed a pretrial motion to suppress "all evidence of the administration of the preliminary breath test or ALERT test . . . u er State v. Schimmel, 409 N.W.2d 335 (N.D. 1987)."
During the motion hearing, the trial court questioned Erickson's attorney about his motion to suppress the result of the A.L.E.R.T. test:
"THE COURT: That evidence of the administration of a preliminary breath test. What's that all about?"
"MR. WOODS: Your Honor, -- THE COURT: That doesn't come in anyway, does it? Did he take a blood test?"
"MR. WOODS: Yeah, there's a blood test."
"MS. AASLAND: And as you know we never bring the ALERT up."
"THE COURT: Well, then that's not coming in anyway."
"MR. WOODS: I'm just covering my bases, Your Honor."
"THE COURT: Okay. All right. I hear you."
Following the hearing, the trial court issued a written order denying Erickson's motion to suppress.
[ ] Despite the city attorney's statement during the motion hearing that the City would "never bring the ALERT up," the following exchange occurred during the City's direct examination of the arresting officer:
"ATTORNEY O'KEEFFE: Okay. What was the defendant's response to your question whether or not he had been drinking the second time?"
"OFFICER POTTER: He said he had not been drinking anything."
"ATTORNEY O'KEEFFE: Okay. What did you do then?"
"OFFICER POTTER: I asked him if he would consent to a breath test."
"ATTORNEY O'KEEFFE: Okay. And what - what happened?"
"OFFICER POTTER: He consented to take one."
"ATTORNEY WOODS: Well, Your Honor, I'm going to object to this. I brought this up earlier, too, and you said there would be big trouble -"
"ATTORNEY O'KEEFFE: Strike that question."
"ATTORNEY WOODS: Too late."
"THE COURT: What? Do you have an objection?"
"ATTORNEY WOODS: Yes."
"THE COURT: State it."
"ATTORNEY WOODS: What he's about to testify is inadmissible in the case law and your ruling."
"THE COURT: Overruled."
"ATTORNEY WOODS: Overruled?"
"THE COURT: Overruled."
"ATTORNEY WOODS: This is State v. Schimmel, Your Honor."
"THE COURT: Overruled."
"ATTORNEY O'KEEFFE: Officer, let's skip what we were just talking about. Let's go right to field sobriety tests. Did you perform those?"
[ ] During jury deliberations the jurors sent out two quest
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