                Filed 10/29/2019 by Clerk of Supreme Court

                I N T H E S U P R E M E C O U R T STATE
                         OF NORTH DAKOTA


                                2019 ND 254

State of North Dakota,                                Plaintiff and Appellant
      v.
Derek James Grzadzieleski,                           Defendant and Appellee



                                No. 20190049

Appeal from the District Court of Pembina County, Northeast Judicial District,
the Honorable Laurie A. Fontaine, Judge.

DISMISSED.

Opinion of the Court by VandeWalle, Chief Justice.

Stephenie L. Davis (argued), Special Assistant State’s Attorney, Manning, ND,
and Rebecca L. Flanders (on brief), Pembina County State’s Attorney,
Cavalier, ND, for plaintiff and appellant.

Alexander F. Reichert (argued), and Challis D. Williams (appeared), Grand
Forks, ND, for defendant and appellee.
                           State v. Grzadzieleski
                               No. 20190049

VandeWalle, Chief Justice.

[¶1] The State appealed from an order granting Derek Grzadzieleski’s motion
to suppress hospital records disclosing that his blood-alcohol content was above
the legal limit after an all-terrain vehicle accident. We conclude the State has
no statutory right to appeal the order and we decline to exercise our
supervisory authority. We therefore dismiss the appeal for lack of jurisdiction.

                                       I

[¶2] On July 4, 2018, Grzadzieleski was involved in an all-terrain vehicle
accident and was transported to a hospital. Hospital staff would not allow law
enforcement officers to speak to him because of the severity of his condition.
On July 20, 2018, officers obtained a search warrant for Grzadzieleski’s
medical records and the hospital produced the records. The records revealed
he had a blood-alcohol level above the legal limit after the accident. The State
charged him with operating an off-highway vehicle while under the influence
of alcohol under N.D.C.C. § 39-29-09(5)(c).

[¶3] Grzadzieleski moved to suppress the evidence, arguing the medical
records were privileged based upon the physician-patient privilege under
N.D.R.Ev. 503. Characterizing the suppression motion as a motion in limine,
the district court ruled the evidence of Grzadzieleski’s blood-alcohol content
was inadmissible based on the physician-patient privilege.

                                       II

[¶4] Grzadzieleski has moved to dismiss the appeal, claiming the district
court’s order is not appealable under N.D.C.C. § 29-28-07(5).

[¶5] The State’s right to appeal in a criminal case is governed by N.D.C.C. §
29-28-07 and is a jurisdictional matter. See, e.g., State v. Powley, 2019 ND 51,
¶ 7, 923 N.W.2d 123; State v. Simon, 510 N.W.2d 635, 636 (N.D. 1994). We
have held that N.D.C.C. § 29-28-07(5), which allows the State to appeal an
order “granting the return of property or suppressing evidence,” authorizes

                                       1
appeals only from orders granting a motion to suppress evidence under
N.D.R.Crim.P. 12(b)(3) and from orders granting a motion to return evidence
under N.D.R.Crim.P. 41(e). See Simon, at 636. The statute allows appeals
from orders excluding or suppressing evidence on the ground that the evidence
was illegally obtained, but does not allow appeals from orders in limine
excluding evidence based on evidentiary grounds. See, e.g., Powley, at ¶¶ 9-11;
State v. Corona, 2018 ND 196, ¶¶ 5-9, 916 N.W.2d 610; State v. Counts, 472
N.W.2d 756, 757 (N.D. 1991); State v. Miller, 391 N.W.2d 151, 155 (N.D. 1986).
In Counts, at 757, we specifically rejected an attempted appeal by the State
from an order excluding evidence based on the husband-wife privilege under
N.D.R.Ev. 504.

[¶6] Although Grzadzieleski labeled his motion to exclude the blood-alcohol
evidence as a motion to suppress, in determining appealability it is not the
label of a motion or order that controls, but rather it is the effect of the motion
or order. See State v. Keilen, 2002 ND 133, ¶ 7, 649 N.W.2d 224; State v. Owens,
1997 ND 212, ¶ 6, 570 N.W.2d 217; State v. Hogie, 424 N.W.2d 630, 631 (N.D.
1988). The district court correctly characterized Grzadzieleski’s motion as a
motion in limine, because it was based on evidentiary grounds. We conclude
N.D.C.C. § 29-28-07(5) does not permit the State to appeal from an in limine
order excluding evidence based on the physician-patient privilege under
N.D.R.Ev. 503.

                                        III

[¶7] The State requests that we exercise our supervisory jurisdiction and
issue a supervisory writ to reverse the district court’s order.

[¶8] In Powley, 2019 ND 51, ¶ 12, 923 N.W.2d 123, we said:

      The authority to issue a supervisory writ is discretionary, and we
      decide whether to exercise supervisory jurisdiction on a case-by-
      case basis, considering the unique circumstances of each case.
      State ex rel. Harris v. Lee, 2010 ND 88, ¶ 6, 782 N.W.2d 626. “We
      exercise our authority to issue supervisory writs rarely and
      cautiously, and only to rectify errors and prevent injustice in
      extraordinary cases when no adequate alternative remedy exists.”


                                        2
      Id. Issues of vital concern regarding matters of important public
      interest may warrant the exercise of our supervisory jurisdiction.
      Id.

(Quoting Winter v. Solheim, 2015 ND 210, ¶ 11, 868 N.W.2d 842).

[¶9] The State has not attempted to explain why this is an extraordinary case
or why the issue is of vital concern regarding a matter of important public
interest. We said in Powley that the State’s inability to appeal a ruling “does
not necessarily create extraordinary circumstances justifying supervisory
jurisdiction.” 2019 ND 51, ¶ 13, 923 N.W.2d 123. Nor, for the following
reasons, is there a showing of any injustice to either party involving an issue
of vital concern to the public.

[¶10] First, although the long-recognized physician-patient privilege is
involved, the holder of the privilege was provided its protections by the district
court. Second, this is not a per se driving under the influence prosecution
which would require a chemical test above the legal limit taken within two
hours of driving to establish a conviction. See, e.g., Glaser v. N.D. Dep’t of
Transp., 2017 ND 253, ¶ 10, 902 N.W.2d 744. Rather, Grzadzieleski was
charged with operating an off-highway vehicle “[w]hile under the influence of
intoxicating liquor or a controlled substance” under N.D.C.C. § 39-29-09(5)(c),
which is similar to a prosecution for driving under the influence under
N.D.C.C. § 39-08-01(1)(b). In non-per se prosecutions for driving under the
influence, “[o]bjective scientific tests are not necessary to support a conviction
of driving while under the influence of intoxicating liquor.” State v. Kisse, 351
N.W.2d 97, 101 (N.D. 1984); see also State v. Engebretson, 326 N.W.2d 212, 215
n.2 (N.D. 1982), overruled on other grounds, State v. Himmerick, 499 N.W.2d
568 (N.D. 1993) (“a breathalyzer test result showing a defendant to be above
the presumptive level of intoxication is not a prerequisite to a finding that the
defendant was under the influence of intoxicating liquor”). Here, any claim
that the State will suffer injustice is especially dubious because the district
court’s order excluding the blood-alcohol evidence does not foreclose
prosecution.

[¶11] We decline to exercise our supervisory authority.


                                        3
                                      IV
[¶12] The appeal is dismissed for lack of jurisdiction.

[¶13] Gerald W. VandeWalle, C.J.
      Jerod E. Tufte
      Daniel J. Crothers
      Lisa Fair McEvers
      Jon J. Jensen




                                       4
