State v. Mayland , 2022 ND 9 ( 2022 )


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  •                                                                                FILED
    IN THE OFFICE OF THE
    CLERK OF SUPREME COURT
    JANUARY 6, 2022
    STATE OF NORTH DAKOTA
    IN THE SUPREME COURT
    STATE OF NORTH DAKOTA
    
    2022 ND 9
    State of North Dakota,                                  Plaintiff and Appellee
    v.
    Charles Spencer Mayland,                             Defendant and Appellant
    No. 20210213
    Appeal from the District Court of Divide County, Northwest Judicial District,
    the Honorable Daniel S. El-Dweek, Judge.
    AFFIRMED.
    Opinion of the Court by Jensen, Chief Justice.
    Seymour R. Jordan, State’s Attorney, Crosby, ND, for plaintiff and appellee.
    Marie A. Miller, Minot, ND, for defendant and appellant.
    State v. Mayland
    No. 20210213
    Jensen, Chief Justice.
    [¶1] Charles Spencer Mayland appeals from a judgment of conviction for
    being in actual physical control of a motor vehicle while under the influence.
    Mayland entered a conditional plea of guilty, preserving his right to appeal the
    denial of his motion to suppress evidence. He argues he was read the implied
    consent advisory before being arrested in violation of N.D.C.C. § 39-20-01(2),
    and the statutory remedy for the violation is the exclusion of evidence. Because
    the statutory exclusion of evidence provided within N.D.C.C. § 39-20-01(3)(b)
    is limited to the proof of the refusal to submit to testing in administrative
    proceedings, we affirm.
    I
    [¶2] In September 2020, Mayland was arrested and charged with Actual
    Physical Control of a Motor Vehicle in violation of N.D.C.C. § 39-08-01.
    Mayland was approached by a law enforcement officer in the parking lot of a
    bar following a report he was sleeping in his vehicle. Mayland was awake when
    the officer arrived. The officer read Mayland the initial screening advisory and
    Mayland agreed to take a preliminary breath test, the result of which exceeded
    the legal limit to operate or be in actual physical control of a motor vehicle.
    Following the preliminary breath test, Mayland asked if he could walk home
    and was told he could not walk home and he was not allowed to leave. The
    officer then read the implied consent advisory as required by N.D.C.C. § 39-20-
    01(3)(a). Mayland consented to take an Intoxilyzer test, the result of which was
    above the legal limit.
    [¶3] Mayland filed a motion to suppress the Intoxilyzer test result, arguing
    the officer failed to inform him he was under arrest before reading the implied
    consent advisory and administering the chemical test. The State responded
    and argued that the officer had placed Mayland under arrest.
    [¶4] The district court found Mayland was not placed under arrest prior to
    being read the implied consent advisory as required by the plain language of
    1
    the statute. City of Grand Forks v. Barendt, 
    2018 ND 272
    , ¶ 14, 
    920 N.W.2d 735
    . However, quoting this Court’s decision in State v. Pouliot, 
    2020 ND 144
    , ¶
    9, 
    945 N.W.2d 246
    , the court noted the following:
    “The legislature’s amendment of N.D.C.C. § 39-20-01(b)
    unambiguously limits the scope of the exclusionary remedy. The
    exclusion of evidence for a violation of N.D.C.C. § 39-20-01(a) is
    now limited to administrative proceedings where a driver refused
    to take the chemical test.”
    The court subsequently concluded as follows:
    Suppression of a test result is not an available remedy when an
    officer violates N.D.C.C. [§] 39-20-01(2) by reading the implied
    consent advisory before placing a suspect under arrest rather than
    after.
    [¶5] On appeal, Mayland again argues for the application of the statutory
    exclusionary rule contained in N.D.C.C. § 39-20-01(3)(b). In his briefing to this
    Court he also argues the results of the breath test should be excluded pursuant
    to the protections provided by the Fourth Amendment of the United States
    Constitution.
    II
    [¶6] Our standard of review from a motion to suppress is as follows:
    When reviewing a district court’s decision on a motion to suppress
    evidence, this Court will defer to the district court’s findings of fact
    and resolve conflicts in testimony in favor of affirmance. A district
    court’s decision on a motion to suppress will be affirmed if there is
    sufficient competent evidence fairly capable of supporting the trial
    court’s findings, and the decision is not contrary to the manifest
    weight of the evidence. Any questions of law are fully reviewable
    on appeal.
    State v. Pouliot, 
    2020 ND 144
    , ¶ 6 (internal citations and quotations omitted).
    [¶7] Both parties place significant emphasis on the district court’s finding
    that Mayland was not under arrest at the time he was read the implied consent
    2
    advisory. The State contends the finding was erroneous, Mayland was under
    arrest, and N.D.C.C. § 39-20-01(2) was not violated. Alternatively, the State
    argues regardless of whether Mayland was placed under arrest before or after
    being read the implied consent warning, the statutory exclusionary rule
    applies only in administrative proceedings when a driver has refused testing.
    [¶8] Mayland cites to, without distinguishing from, this Court’s holding in
    Pouliot, 
    2020 ND 144
    . In Pouliot, we held as follows:
    In 2019, the Legislature once again amended N.D.C.C. § 39-20-
    01(3)(b), which became effective August 1, 2019, to read as follows:
    b. If an individual refuses to submit to testing under this
    section, proof of the refusal is not admissible in any
    administrative proceeding under this chapter if the law
    enforcement officer fails to inform the individual as required
    under subdivision a.
    The 2019 amendment significantly limits the scope of the exclusion
    of evidence to “proof of the refusal” in an “administrative
    proceeding.” “When the legislature amends an existing statute, it
    indicates its intent to change the statute’s meaning in accord with
    its new terms.” State v. Beilke, 
    489 N.W.2d 589
    , 592-93 (N.D.
    1992). “The legislature is presumed to act with purpose and not
    perform useless acts.” 
    Id.
     The legislature’s amendment of N.D.C.C.
    § 39-20-01(b) unambiguously limits the scope of the exclusionary
    remedy. The exclusion of evidence for a violation of N.D.C.C. § 39-
    20-01(a) is now limited to administrative proceedings where a
    driver refused to take the chemical test.
    Pouliot, at ¶¶ 10-11.
    [¶9] It is not necessary for this Court to engage in a review of the fact specific
    finding of when Mayland was placed under arrest. Regardless of whether
    Mayland was placed under arrest before or after he was read the implied
    consent warning, and regardless of whether reading the implied consent
    warning must occur after the arrest, this Court’s decision in Pouliot
    unambiguously provides “[t]he exclusion of evidence for a violation of N.D.C.C.
    § 39-20-01(a) is now limited to administrative proceedings where a driver
    3
    refused to take the chemical test.” This case is a criminal proceeding and not
    an administrative proceeding. Mayland took the test, he did not refuse the test.
    The district court correctly concluded the statutory exclusionary rule does not
    apply to this case.
    III
    [¶10] Mayland challenges the refusal to suppress the Intoxilyzer result under
    the Fourth Amendment. Mayland did not assert in the district court that the
    protections of the Fourth Amendment compelled suppression of the Intoxilyzer
    test results. He requests this Court consider the issue on appeal because “there
    is a strong possibility of reoccurrence or the issue is one of public policy or of
    broad . . . concern.” State v. Whitman, 
    2013 ND 183
    , ¶ 15, 
    838 N.W.2d 401
    (internal citations omitted). In summary, Mayland asserts he was not under
    arrest, without an arrest there could be no search incident to arrest, and as a
    result the evidence was seized in violation of the Fourth Amendment.
    [¶11] This Court has consistently held that “a question not raised or
    considered in the trial court cannot be raised for the first time on appeal.”
    Bearce v. Yellowstone Energy Dev., 
    2021 ND 143
    , ¶ 11, 
    963 N.W.2d 299
     (quoting
    State v. Kensmoe, 
    2001 ND 190
    , ¶ 17, 
    636 N.W.2d 183
    ). We decline Mayland’s
    invitation to review whether the protections of the Fourth Amendment require
    suppression of the test results.
    IV
    [¶12] The statutory exclusionary rule in N.D.C.C. § 39-20-01(3)(b) applies only
    in administrative hearings involving the refusal to submit to a chemical test.
    We decline to address issues not raised in the district court. We affirm the
    judgment.
    [¶13] Jon J. Jensen, C.J.
    Gerald W. VandeWalle
    Daniel J. Crothers
    Lisa Fair McEvers
    Jerod E. Tufte
    4
    

Document Info

Docket Number: 20210213

Citation Numbers: 2022 ND 9

Judges: Jensen, Jon J.

Filed Date: 1/6/2022

Precedential Status: Precedential

Modified Date: 1/6/2022