                Filed 2/21/19 by Clerk of Supreme Court
                         IN THE SUPREME COURT
                      STATE OF NORTH DAKOTA


                                   2019 ND 43


State of North Dakota,                                      Plaintiff and Appellant

      v.

Robert S. Vetter,                                         Defendant and Appellee


                                  No. 20180142


       Appeal from the District Court of Burleigh County, South Central Judicial
District, the Honorable James S. Hill, Judge.

      REVERSED AND REMANDED.

      Opinion of the Court by Tufte, Justice.

       Ryan A. Keefe, Assistant State’s Attorney, Bismarck, N.D., for plaintiff and
appellant.

      Chad R. McCabe, Bismarck, N.D., for defendant and appellee.
                                   State v. Vetter
                                    No. 20180142


       Tufte, Justice.
[¶1]   The State appeals from an order granting Robert Vetter’s motion to suppress
chemical test evidence and motion in limine. We conclude the district court
misapplied the law in interpreting statutory requirements under the implied consent
law and the court failed to properly consider the totality of the circumstances to
determine whether Vetter voluntarily consented to the blood test. We reverse the
district court’s order and remand for additional findings and for the court to determine
whether Vetter’s consent was voluntary.


                                           I
[¶2]   Vetter was charged with driving under the influence of alcohol under N.D.C.C.
§ 39-08-01, a class B misdemeanor. Vetter moved to suppress the chemical test
evidence, arguing the evidence was obtained as a result of an unconstitutional search
and seizure. He claimed the chemical test of his blood was conducted without a
warrant, his consent was based on an inaccurate implied consent advisory, he did not
voluntarily consent to the blood test, and therefore the search was unreasonable and
violated his constitutional rights. Vetter also filed a motion in limine, arguing the
evidence of the chemical test should be excluded under N.D.C.C. § 39-20-01(3)(b)
because the arresting officer did not read him the full post-arrest implied consent
advisory.
[¶3]   After a hearing, the district court granted Vetter’s motions and ordered the
chemical test evidence be excluded. The court found a Burleigh County sheriff’s
deputy stopped the vehicle Vetter was driving, Vetter admitted to the deputy that he
had consumed alcohol that evening, and he volunteered to take a breathalyzer test.
The court found the deputy read Vetter a version of the North Dakota implied consent
advisory, Vetter completed the preliminary breath test, the deputy told Vetter the test

                                           1
showed his blood alcohol level was at .164%, and he was placed under arrest. The
court further found the deputy read Vetter the implied consent advisory again, the
deputy asked Vetter if he would consent to taking a test and Vetter said yes, the
deputy asked Vetter if he would consent to take a blood test and Vetter said yes, and
a blood test was administered. The court ruled Vetter’s consent to the blood test was
coerced because he was read the implied consent advisory a second time after his
arrest and the advisory implied Vetter could not refuse the test without criminal
consequences. The court concluded the blood test evidence must be suppressed
because it was obtained as a result of an unconstitutional search and seizure.


                                          II
[¶4]   Vetter argues the State’s appeal should be dismissed because the appeal is not
authorized by N.D.C.C. § 29-28-07. Under N.D.C.C. § 29-28-07(5), the State may
appeal from “[a]n order . . . suppressing evidence . . . when accompanied by a
statement of the prosecuting attorney asserting that the appeal is not taken for
purpose of delay and that the evidence is a substantial proof of a fact material in the
proceeding.” Vetter claims the appeal is from an order granting a motion in limine,
which is not an appealable order.
[¶5]   This Court has held appeals by the State under N.D.C.C. § 29-28-07(5) are
limited to appeals from the granting of a motion to suppress under N.D.R.Crim.P.
12(b)(3) and from the granting of a motion to return evidence under N.D.R.Crim.P.
41(e). See State v. Corona, 2018 ND 196, ¶¶ 7-9, 916 N.W.2d 610. Although a
motion in limine and a motion to suppress both seek to exclude evidence, appeals are
limited to orders excluding evidence because it was illegally obtained—we lack
appellate jurisdiction to consider orders excluding evidence for other reasons. Id.;
State v. Simon, 510 N.W.2d 635 (N.D. 1994) (dismissing appeal from order excluding
blood test on grounds that the expert analyst was not available for cross-examination
and distinguishing illegally obtained evidence from other grounds for exclusion).
Vetter filed a motion in limine seeking exclusion of the chemical test based on an

                                          2
incomplete implied consent advisory and a motion to suppress seeking exclusion of
the same test based on a claim it was illegally obtained as a result of an unreasonable
search. The court granted both motions and suppressed the blood test evidence,
concluding the evidence was obtained as a result of an unconstitutional search. The
State appealed from this order and also filed a statement from the prosecuting attorney
stating the appeal was not taken for the purpose of delay and the evidence is
substantial proof of a fact material to the proceeding. We conclude the State appealed
from an order granting a motion to suppress and the appeal is authorized by N.D.C.C.
§ 29-28-07(5). See State v. Fleckenstein, 2018 ND 52, ¶ 4, 907 N.W.2d 365.


                                          III
[¶6]   The State argues the district court misapplied the law in interpreting statutory
requirements under the implied consent law and the court erred in determining Vetter
did not voluntarily consent to the blood test.
[¶7]   In reviewing the district court’s decision on a motion to suppress, this Court
gives deference to the district court’s findings of fact. Fleckenstein, 2018 ND 52, ¶ 5,
907 N.W.2d 365. The court’s decision will not be reversed on appeal if there is
sufficient competent evidence fairly capable of supporting the court’s findings and the
decision is not contrary to the manifest weight of the evidence. Id. Questions of law
are fully reviewable, and whether a finding of fact meets a legal standard is a question
of law. Id.
[¶8]   The Fourth Amendment of the United States Constitution and Article I, Section
8 of the North Dakota Constitution prohibit unreasonable searches and seizures. See
State v. Sauter, 2018 ND 75, ¶ 8, 908 N.W.2d 697. “The administration of a blood
test to determine blood-alcohol concentration is a search under those constitutional
provisions.” Sauter, at ¶ 8 (quoting State v. Morales, 2015 ND 230, ¶ 8, 869 N.W.2d
417). Warrantless searches are unreasonable unless they fall within a recognized
exception to the warrant requirement. State v. Hawkins, 2017 ND 172, ¶ 7, 898
N.W.2d 446.

                                           3
[¶9]      Voluntary consent is a recognized exception. Hawkins, 2017 ND 172, ¶ 7, 898
N.W.2d 446. The court must consider the totality of the circumstances to determine
whether consent is voluntary, including the characteristics and condition of the
accused at the time of the consent and the details of the setting in which the consent
was obtained. Id. at ¶ 8. “[C]oercive police activity is a necessary predicate” to a
finding that purported consent was not voluntary. State v. Webster, 2013 ND 119,
¶ 22, 834 N.W.2d 283. Whether consent is voluntary is a question of fact. Hawkins
at ¶ 7.
[¶10] The district court granted the motion to suppress and the motion in limine. The
court found the deputy read Vetter the implied consent advisory before giving the
preliminary breath test and Vetter was arrested after the preliminary breath test was
administered. The court found the deputy read the implied consent advisory to Vetter
a second time after his arrest, the deputy requested Vetter take a blood test without a
warrant, and a blood test was administered. In determining whether Vetter voluntarily
consented to the blood test, the court found there was no need for the deputy to
have read the implied consent advisory again after the arrest and the deputy had
an obligation to tell Vetter that he would suffer no criminal penalty if he refused to
consent. The court ruled the second implied consent advisory more than implied
Vetter could not refuse the blood test without criminal consequences and advising
Vetter that state law required him to submit to a chemical test was coercive.
          The Court . . . conclude[d] as a matter of law that Vetter was, in
          essence, threatened with an unlawful search and his “consent” was
          coerced, given the inaccuracy of the second implied consent advisory,
          without which it can reasonably be presumed he would not have
          submitted to a blood test. This was a first time DUI arrest for defendant
          Vetter. The fact that [the deputy] gave two different North Dakota
          implied consent advisories, using the words “breath test” in the first and
          after the breath test was successfully completed gave the second
          advisory with the term “chemical test” is determinative.
The court concluded the State failed to prove Vetter voluntarily consented to the
blood test.



                                              4
[¶11] The district court found there was no need for the second implied consent
advisory. Vetter and the State agree the district court was mistaken as to the law on
implied consent advisories under N.D.C.C. §§ 39-20-14 and 39-20-01(3)(a) and
erroneously believed the second advisory after arrest should not have been given.
Section 39-20-01(3)(a), N.D.C.C., requires a law enforcement officer to:
       inform the individual charged that North Dakota law requires the
       individual to take a chemical test to determine whether the individual
       is under the influence of alcohol or drugs and that refusal of the
       individual to submit to a test directed by the law enforcement officer
       may result in a revocation of the individual’s driving privileges for a
       minimum of one hundred eighty days and up to three years. In
       addition, the law enforcement officer shall inform the individual refusal
       to take a breath or urine test is a crime punishable in the same manner
       as driving under the influence. If the officer requests the individual to
       submit to a blood test, the officer may not inform the individual of any
       criminal penalties until the officer has first secured a search warrant.
Evidence of a chemical test is not admissible in a criminal proceeding if the officer
fails to inform the charged individual as required by N.D.C.C. § 39-20-01(3)(a). See
N.D.C.C. § 39-20-01(3)(b). This Court has interpreted the statutory requirements of
N.D.C.C. § 39-20-01 and held the implied consent advisory under N.D.C.C. § 39-20-
01(3) must be read after placing an individual under arrest and before administering
a chemical test to determine alcohol concentration. See City of Grand Forks v.
Barendt, 2018 ND 272, ¶ 17, 920 N.W.2d 735.
[¶12] The district court found the deputy gave Vetter two implied consent advisories,
one before the preliminary breath test was successfully administered and one after
arrest and before the blood test. The court found the deputy advised Vetter after the
arrest that:
       [A]s a condition of operating a motor vehicle on a highway or in a
       public or private area to which the public has a right of access to as a
       condition of operating, do you consent to taking a test to determine
       whether you are under the influence of alcohol or drugs? I must inform
       you that a North Dakota law requires you to submit to a chemical test
       to determine whether you are under the influence of alcohol or drugs.
       Refusal to take the test as directed by law enforcement officer may
       result in a revocation of your driver’s license for a minimum of a 180

                                          5
       days and potentially up to three years. Do you understand these
       consequences?
[¶13] The deputy read Vetter the implied consent advisory after the arrest and before
administering the blood test, as N.D.C.C. § 39-20-01(3) requires. The deputy
informed Vetter that the refusal could result in revocation of his driving privileges,
but the deputy did not advise Vetter that refusal to take a breath or urine test is a
crime. Because the deputy requested a blood test, he was not permitted to inform
Vetter that refusal to take a breath or urine test is a crime punishable in the same
manner as driving under the influence. See DeForest v. N.D. Dep’t of Transp., 2018
ND 224, ¶ 12, 918 N.W.2d 43. The deputy did not inform Vetter of any criminal
penalties for refusal to consent to the test. The deputy accurately read Vetter the
implied consent advisory after his arrest. The district court misapplied the law by
finding that there was no need for the second implied consent advisory and that the
second advisory was not accurate.
[¶14] Furthermore, the district court erred to the extent it held Vetter’s consent was
coerced by the deputy’s reading of the second advisory alone. In Birchfield v. North
Dakota, 136 S. Ct. 2160, 2186 (2016), the United States Supreme Court held “that
motorists cannot be deemed to have consented to submit to a blood test on pain of
committing a criminal offense.” Because the deputy requested a blood test, he did not
inform Vetter of any criminal penalties for refusal to consent to the test. The evidence
does not support the court’s finding that the second advisory “more than implied” that
Vetter could not refuse the blood test without criminal consequences. This Court has
said consent to take a test is not coerced simply because an administrative penalty has
been attached to refusing to take the test. Fleckenstein, 2018 ND 52, ¶ 7, 907 N.W.2d
365. We held “that reading an accurate implied consent advisory does not constitute
per se coercion and that voluntariness of consent must be determined by the totality
of the circumstances.” Id. at ¶ 9.
[¶15] Although the district court considered the patrol car video evidence of the stop
and stated it concluded from the totality of the circumstances that the consent was
not voluntary, the court did not make any specific findings about the totality of the
                                           6
circumstances or otherwise indicate it properly considered them. The court found this
was a first time DUI arrest for Vetter, which is a relevant factor in the voluntariness
inquiry. However, the evidence does not support this finding. Vetter testified he had
previously been arrested for DUI.
[¶16] The district court did not properly consider the totality of the circumstances,
and its decision was based on its misapplication of the law about the implied consent
advisory. We conclude the court misapplied the law by failing to properly consider
the totality of the circumstances in determining the voluntariness of Vetter’s consent.


                                          IV
[¶17] We reverse the district court’s order granting Vetter’s motion to suppress
and motion in limine. We remand for additional findings and a determination of
voluntariness based upon the totality of the circumstances.
[¶18] Jerod E. Tufte
      Daniel J. Crothers
      Lisa Fair McEvers
      Jon J. Jensen
      Gerald W. VandeWalle, C.J.




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