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City of Fargo v. Erickson7/29/1999
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Further, we noted despite the general rule that all relevant evidence is admissible, N.D.R.Ev. 402 explicitly states that "even relevant evidence may be made inadmissible by the Legislature." Id. We concluded there was no conflict between N.D.C.C. § 39-20-14 and the rules of evidence. Id.; see also United States v. Iron Cloud, 171 F.3d 587, 590 n.5 (8th Cir. 1999) (citing numerous state court decisions including Ruether, at 482-83, and stating "almost every state that has addressed the issue has refused to admit the results of [a preliminary screening] test for purposes other than probable cause").
[ ] Here, Erickson conceded the officer had probable cause to arrest him for driving under the influence , and therefore probable cause was not an issue at trial. Thus, the parties do not dispute the result of the A.L.E.R.T. test was inadmissible under N.D.C.C. § 39-20-14. The parties do dispute the admissibility of the arresting officer's testimony that, after stopping Erickson, the officer asked him whether he would consent to a breath test and the further testimony that Erickson consented. Erickson's attorney objected arguing the testimony was inadmissible, citing State v. Schimmel, 409 N.W.2d 335 (N.D. 1987). The City asserts the trial court did not err in admitting testimony that Erickson consented to take the A.L.E.R.T. test because the result of Erickson's test was never admitted.
[ ] We agree the language of N.D.C.C. § 39-20-14 explicitly refers to the result of an A.L.E.R.T. test, and not to the admissibility of whether a person consented to take an A.L.E.R.T. test. However, N.D.R.Ev. 401 defines relevant evidence as "evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence." See also State v. Klein, 1999 ND 76, 5, 593 N.W.2d 325; State v. Schimmel, 409 N.W.2d 335, 339 (N.D. 1987). Irrelevant evidence is inadmissible. N.D.R.Ev. 402; Schimmel, at 339.
[ ] Probable cause for Erickson's arrest was not an issue at trial rendering the result of the test irrelevant and inadmissible under N.D.C.C. § 39-20-14. Thus, whether Erickson consented to take a breath test was also irrelevant evidence having no tendency "to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence." N.D.R.Ev. 401. We therefore conclude the trial court erred in admitting the irrelevant evidence that Erickson consented to take a breath test. See N.D.R.Ev. 402.
III.
[ ] If this court decides a trial court erred in admitting evidence, we must then decide whether the error was so prejudicial that a defendant's substantial rights were affected and a different decision would have resulted without the error. See State v. Schimmel, 409 N.W.2d 335, 339 (N.D. 1987); see also 1 Jack B. Weinstein & Margaret A. Berger, Weinstein's Federal Evidence § 103.41 (2d ed. 1999) (noting the prejudicial effect of improperly admitted evidence is the "single most important factor" when deciding whether an error is harmless or prejudicial). An erroneous evidentiary ruling shall be disregarded as harmless error under N.D.R.Crim.P. 52(a) if it does not affect substantial rights of the defendant. See, e.g., State v. Messner, 1998 ND 151, 24, 583 N.W.2d 109 (noting erroneously admitted evidence that is cumulative to other properly admitted evidence is harmless error because it is not prejudicial and does not affect the substantial rights of a party); State v. Hart, 1997 ND 188, 21, 569 N.W.2d 451; State v. Schimmel, 409 N.W.2d 335, 339 (N.D. 1987); State v. Lind
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