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State v. Berger7/22/2004
On the evening of November 30, 2002, Officer Vanderhoef of the Mandan Police Department was following a van driven by Lance Berger on Main Street in Mandan. Officer Vanderhoef noticed Berger was tailgating the vehicle in front of him, and Berger's van almost struck the vehicle as it turned off onto a side street. Officer Vanderhoef then noticed Berger's van weaving within its lane, and crossing over and straddling the yellow line dividing the traffic lane from the turning lane. At that point, Officer Vanderhoef activated his overhead lights and stopped Berger's vehicle.
[ ] Berger greeted Officer Vanderhoef with profanity and became verbally abusive. Sergeant Flanagan of the Mandan Police Department arrived to assist, and Berger became more belligerent. Officer Vanderhoef testified Berger "became very, very aggressive with Sergeant Flanagan and myself, such that Lance and Sergeant Flanagan were chest-to-chest, and Lance was kind of bucking his chest against [Sergeant Flanagan's], and I had to ask Lance to calm down and separate him from the vehicle."
[ ] Officer Vanderhoef also testified Berger could not stand still, he paced back and forth, he was very nervous, and his whole body was shaking. Officer Vanderhoef decided to administer field sobriety tests and Berger passed the one-legged stand test. On the horizontal gaze nystagmus ("HGN") test, Berger exhibited two "clues" of nystagmus. *fn1 Officer Vanderhoef testified that, during the HGN test, Berger "was shaking, just very, very hard shaking, his whole body, all the way down to his feet," and "I had to ask him on several occasions to try to remain as still as possible so that we could do the test."
[ ] Officer Vanderhoef then performed a light reactivity test, which measures the eye's reaction to light. Officer Vanderhoef testified he noticed before the test that Berger's eyes were glossed over, watery, and fully dilated. When light was shined into Berger's eyes his pupils reacted "very, very slowly," "you couldn't even tell that they had reacted at all," and "[t]hey stayed virtually fully dilated."
[ ] Officer Vanderhoef arrested Berger for driving under the influence of drugs. A subsequent search incident to arrest produced a digital scale, pen tube, tinfoil, spoon, and glass vial with methamphetamine residue.
[ ] Berger was charged with possession of drug paraphernalia. Berger moved to suppress all evidence found during the traffic stop, arguing there was not probable cause for his arrest. The trial court denied the motion, concluding Berger's behavior, Berger's driving, the field tests, and the officer's training supported a determination of probable cause to believe Berger was driving under the influence of a controlled substance. A jury returned a verdict of guilty, and the trial court entered an order deferring imposition of sentence.
II.
[ ] Berger's notice of appeal states that he appeals from the order deferring imposition of sentence. An order deferring imposition of sentence is not listed as an appealable order in N.D.C.C. § 29-28-06. Where no separate judgment of conviction has been entered and the order deferring imposition of sentence complies with the requirements of N.D.R.Crim.P. 32(b) for criminal judgments, the order serves as the judgment of conviction and is appealable. State v. Trosen, 547 N.W.2d 735, 737 n.1 (N.D. 1996). The order in this case satisfies the requirements of N.D.R.Crim.P. 32(b) and no separate judgment of conviction was entered. Therefore, the order deferring imposition of sentence serves as the judgment and the appeal is properly before us.
III.
[ ] The sole question presented on appeal is whether Officer Vanderhoef had probable cau
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