                Filed 6/27/19 by Clerk of Supreme Court
                        IN THE SUPREME COURT
                        STATE OF NORTH DAKOTA


                                   2019 ND 161


City of West Fargo,                                         Plaintiff and Appellant

      v.

Tyler Clark Williams,                                      Defendant and Appellee


                                  No. 20180447


      Appeal from the District Court of Cass County, East Central Judicial District,
the Honorable Thomas R. Olson, Judge.

      REVERSED AND REMANDED.

      Opinion of the Court by McEvers, Justice.

      Stephen R. Hanson II, West Fargo, ND, for plaintiff and appellant.

      Luke T. Heck (argued) and Drew J. Hushka (on brief), Fargo, ND, for
defendant and appellee.
                          City of West Fargo v. Williams
                                    No. 20180447


       McEvers, Justice.
[¶1]   The City of West Fargo appeals from a district court order suppressing
evidence of Tyler Clark Williams’ refusal to submit to a chemical test, arguing
N.D.C.C. § 39-20-02 contemplates an arrestee only has a statutory right to an
independent test if he has already submitted to the chemical test requested by law
enforcement. We reverse the district court order and remand for proceedings
consistent with this opinion.


                                           I
[¶2]   On May 7, 2018, a law enforcement officer conducted a traffic stop on
Williams. Upon speaking with Williams, who admitted he had been drinking, the
officer conducted various field sobriety tests. After Williams completed the field
sobriety tests, the officer read Williams the implied consent advisory and asked him
to submit to an on-site screening test. Williams stated he would rather take a blood
test. The officer responded a blood test was not available and that the only available
test was the breath screening test. The officer repeated the implied consent advisory
and then Williams agreed to take the breath screening test. Immediately prior to the
administration of the screening test, Williams again asked why he could not have a
blood test and the officer responded he did not have a blood kit in his car. The breath
test was administered, and a result above the legal limit caused the officer to arrest
Williams for driving under the influence. After he was arrested, Williams asked why
he was not allowed to refuse the breath screening test and the officer replied Williams
was allowed to refuse the test but the officer did not have the tools to complete a
blood test in his car. The officer stated that when “we’re all said and done,” Williams
could go get a blood test at a hospital.


                                           1
[¶3]   Once they arrived at the jail, the officer read Williams the implied consent
advisory and requested a chemical breath test, which Williams refused. After
Williams’ refusal, the officer again explained Williams could get a blood test at a
hospital at his own expense. Williams was charged under West Fargo City Ordinance
13-0203 with driving under the influence of intoxicating liquor–refusal.
[¶4]   Prior to trial, Williams moved to suppress evidence of his refusal, arguing he
was not afforded a reasonable opportunity to obtain an independent blood test. At the
motion hearing, the arresting officer testified and a video of the traffic stop and arrest
was introduced as an exhibit. The district court granted the motion to suppress,
finding under the totality of the circumstances Williams was not given a reasonable
opportunity to secure an independent test. The court also found that although
Williams refused the chemical test, he was an individual tested under N.D.C.C. § 39-
20-02, because he submitted to the on-site screening test.


                                            II
[¶5]   This Court reviews a district court’s order on a motion to suppress as follows:
       This Court defers to the district court’s findings of fact and resolves
       conflicts in testimony in favor of affirmance. This Court will affirm a
       district court decision regarding a motion to suppress if there is
       sufficient competent evidence fairly capable of supporting the district
       court’s findings, and the decision is not contrary to the manifest weight
       of the evidence. Questions of law are fully reviewable on appeal, and
       whether a finding of fact meets a legal standard is a question of law.
State v. Hansford, 2019 ND 52, ¶ 12, 923 N.W.2d 113 (citation omitted). “Statutory
interpretation is a question of law.” S & B Dickinson Apartments I, LLC v. Stark Cty.
Bd. of Comm’rs, 2018 ND 158, ¶ 10, 914 N.W.2d 503.


                                            A
[¶6]   In its order granting suppression, the district court found that since Williams
was not given a reasonable opportunity to secure an independent test, he was denied
the ability to cure his refusal.
                                            2
[¶7]   The City argues the district court incorrectly relied on N.D. Dep’t of Transp.
v. DuPaul, 487 N.W.2d 593, 597 (N.D. 1992), regarding the existence of a right to an
independent test in the context of a test refusal.
[¶8]   In DuPaul, the driver was arrested on suspicion of driving under the influence,
refused to take a field sobriety test, and later refused to submit to alcohol testing after
being asked to do so several times. 487 N.W.2d 593, 595. Instead, DuPaul asked for
a doctor and a lawyer. Id. After being charged with driving under the influence and
preventing arrest, law enforcement officers again asked for DuPaul’s consent to
alcohol testing, and he did not affirmatively respond. Id. After DuPaul was taken to
jail, he posted bond, was released, and went to the hospital for an independent blood
alcohol test several hours after the time of his arrest. Id. On appeal, DuPaul argued
he never actually refused alcohol testing, and that his request for a doctor indicated
his consent to testing by a doctor. Id. at 597. This Court held that DuPaul’s
independent test at the hospital after his release from jail did not cure his refusal to
be tested while in police custody. Id. This Court noted DuPaul was entitled to “a
reasonable opportunity for an additional test by a person of his own choosing.” Id.
However, the holding in DuPaul is clear, a refusal cannot be cured by an independent
test after the driver is released from police custody. To the extent that the district
court relied on DuPaul to show the officer misinformed Williams on how to obtain
an independent test, the court was correct. However, this Court did not analyze in
DuPaul whether an independent test must be a “test . . . in addition to any
administered at the direction of a law enforcement officer,” as referenced by N.D.C.C.
§ 39-20-02 (emphasis added).
[¶9]   The district court also relied on Scott v. N.D. Dep’t of Transp., 557 N.W.2d
385 (N.D. 1996), for the proposition that an independent test can cure an alleged
refusal so long as the motorist has been in continuous police custody. In Scott, this
Court held that N.D.C.C. § 39-20-02 “authorizes a person tested under NDCC 39-20-
01 to obtain an independent test to rebut the officer’s chosen test.” 557 N.W.2d at
387 (emphasis added). This Court in Scott also noted that law enforcement cannot
                                            3
administer a test under N.D.C.C. § 39-20-01 “unless and until he has arrested the
driver,” and informed the driver that he is or will be charged with driving under the
influence or being in actual physical control. Id. at 387-88. We further stated, “[w]e
have stressed that an independent test cannot cure someone’s refusal to be tested
unless that person has been in continuous police custody.” Id. at 388. To the extent
that we may have previously implied a refusal can be cured with an independent test
without also taking the chemical test requested by law enforcement, we hold now it
cannot. However, in some cases, that reasonable opportunity for an independent test
may arise before a test has been administered at the direction of a law enforcement
officer. See State v. Dressler, 433 N.W.2d 549, 550 (N.D. Ct. App. 1988).
[¶10] Here, contrary to the district court’s finding, the record does not reflect
Williams requested an additional test after his refusal of the chemical test. Had
Williams requested to submit to testing in order to cure his refusal, he would have had
to consent to the test of the law enforcement officer’s choosing. See N.D.C.C. § 39-
20-01. Only then would his right to an independent additional test arise. Williams
did not consent or submit to any chemical testing requested by law enforcement after
being arrested and informed of his charges; the only testing that took place (field
sobriety and on-site breath screening test) occurred prior to arrest and information of
charges. Therefore, Williams was not denied a reasonable opportunity to cure his
refusal.


                                          B
[¶11] The City argues the district court erred by granting Williams’ motion to
suppress because the plain language of N.D.C.C. § 39-20-02 contemplates that an
arrestee only has a statutory right to an independent test if he has already submitted
to the chemical test requested by law enforcement, and Williams was not an
“individual tested” by virtue of his submission to the on-site screening test. The City
contends the statute’s reference to “any administered” tests refers to chemical tests,


                                          4
not on-site screening tests, because a breath screening test is inadmissible regardless
of whether an arrestee obtains an additional test.
[¶12] We have previously stated “[u]nder N.D.C.C. § 39-20-01, law enforcement
dictates which type of chemical test for intoxication will be administered and where
the test will be conducted.” Lange v. N.D. Dep’t of Transp., 2010 ND 201, ¶ 6, 790
N.W.2d 28. We have also recognized N.D.C.C. § 39-20-02 provides that an
individual arrested for intoxication “may have a medically qualified individual of their
choosing . . . administer an additional chemical test for intoxication, which is
independent of the test administered by law enforcement.” Lange, at ¶ 6. When an
arrestee is denied the right to an independent chemical test under N.D.C.C. § 39-20-
02, the results of the chemical tests administered at the direction of law enforcement
may be suppressed or charges may be dismissed. Id.
[¶13] Section 39-20-02, N.D.C.C., “Individuals qualified to administer test and
opportunity for additional test,” reads, in pertinent part:
       The individual tested may have an individual of the individual’s
       choosing, who is medically qualified to draw blood, administer a
       chemical test or tests in addition to any administered at the direction of
       a law enforcement officer with all costs of an additional test or tests to
       be the sole responsibility of the individual charged. The failure or
       inability to obtain an additional test by an individual does not preclude
       the admission of the test or tests taken at the direction of a law
       enforcement officer.
(Emphasis added.) When interpreting a statute, “we give words their plain, ordinary
and commonly understood meaning.” Kroschel v. Levi, 2015 ND 185, ¶ 9, 866
N.W.2d 109 (citation omitted); see also N.D.C.C. § 1-02-02. We interpret statutes to
give meaning and effect to every word, phrase, and sentence, and will not adopt a
construction “which would render part of the statute mere surplusage.” Sorenson v.
Felton, 2011 ND 33, ¶ 15, 793 N.W.2d 799 (citation omitted).
[¶14] Williams’ reading of the statute ignores the “in addition” language which
clearly contemplates that at least one chemical test be given in order to allow the
“additional test” under N.D.C.C. § 39-20-02. “Addition” means “1. An adding of two

                                           5
or more numbers to get a number called the sum[;] 2. a joining of a thing to another
thing[;] 3. a thing or part added.” Webster’s New World Dictionary, 16 (2nd ed.
1980). “Additional,” an adjective used to modify or describe the word “test,” means
“added; more; extra.” Id.
[¶15] Furthermore, the “additional test,” provided for in N.D.C.C. § 39-20-02 is in
addition to “any administered.” Under the district court’s reasoning, on-site screening
tests count as “any administered” tests, but a closer analysis of the statutory language
reveals otherwise. We have previously relied on the principle of ejusdem generis to
interpret statutory language:
              Under the principle of ejusdem generis, general words following
       particular and specific words are not given their natural and ordinary
       sense, standing alone, but are confined to persons and things of the
       same kind or genus as those enumerated. In applying the rule of
       ejusdem generis, we must keep in mind the admonition that our primary
       purpose is always to carry out the intent of the legislature. The rule
       accomplishes the purpose of giving effect to both the particular and the
       general words, by treating the particular words as indicating the class,
       and the general words as extending the provisions of the statute to
       everything embraced in that class, though not specifically named by the
       particular words.
Olson v. Job Service N.D., 2013 ND 24, ¶ 7, 827 N.W.2d 36 (internal citations and
quotations   omitted).       Because    the    statute   enumerates    the   particular
“genus”—chemical tests—prior to stating the general—“any administered”—the
“any” must be confined to tests of the kind previously and particularly articulated:
chemical tests.
[¶16] An on-site screening test is described in N.D.C.C. § 39-20-14(3) as a test to
determine whether further testing shall be given under N.D.C.C. § 39-20-01. Under
N.D.C.C. § 39-20-01(1), a chemical test means “any test to determine the alcohol
concentration or presence of other drugs, or combination thereof, in the individual’s
blood, breath, or urine, approved by the director of the state crime laboratory or the
director’s designee under this chapter.” The chemical tests must only be administered
after placing the individual under arrest and informing the individual of his charges

                                           6
or forthcoming charges. N.D.C.C. § 39-20-01(2) (exceptions not noted). Reading
these statutes in context, an on-site screening test is not a chemical test as described
in N.D.C.C. § 39-20-01(1).
[¶17] We agree that a plain reading of N.D.C.C. § 39-20-02 requires that the right
to an additional independent test only arises when the driver submits to the chemical
test requested by law enforcement.


                                           C
[¶18] Williams cites to Arizona and Montana caselaw to advance his argument that
there exists an inherent right to seek independent testing. The City responds to
Williams’ argument by stating Williams failed to present the inherent right argument
to the district court and thus presents the argument to this Court for the first time on
appeal. In Williams’ notice of his motion to suppress evidence submitted before the
court, he stated he moved “on grounds that his statutory right to an independent blood
test was violated.” Williams again articulated his argument was rooted in a statutory
right, not an inherent right, at the hearing on the motion to suppress, referring to
Williams’ right as “his statutory right.” We have held that “[t]he purpose of an appeal
is to review the actions of the trial court, not to grant the appellant an opportunity to
develop and expound upon new strategies or theories.” Spratt v. MDU Res. Grp.,
Inc., 2011 ND 94, ¶ 14, 797 N.W.2d 328. Because Williams raises this new inherent
right theory for the first time on appeal, we decline to address it.


                                           III
[¶19] We have considered the remaining issues and arguments raised by the parties
and conclude they are either unnecessary to our decision or are without merit.




                                           7
                                        IV
[¶20] We reverse the district court’s order suppressing evidence and remand for
proceedings consistent with this opinion.
[¶21] Lisa Fair McEvers
      Daniel J. Crothers
      Jerod E. Tufte
      Jon J. Jensen
      Gerald W. VandeWalle, C.J.




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