State v. Sackenreuter , 2020 ND 312 ( 2020 )

FILED
IN THE OFFICE OF THE
CLERK OF SUPREME COURT
DECEMBER 17, 2020
STATE OF NORTH DAKOTA
IN THE SUPREME COURT
STATE OF NORTH DAKOTA
2020 ND 312
State of North Dakota, Plaintiff and Appellee
v.
Dustin Allan Sackenreuter, Defendant and Appellant
No. 20200176
Appeal from the District Court of Ramsey County, Northeast Judicial District,
the Honorable Donovan J. Foughty, Judge.
AFFIRMED.
Opinion of the Court by Crothers, Justice.
Kari M. Agotness, Devils Lake, ND, for plaintiff and appellee; submitted on
brief.
Christopher J. Thompson, West Fargo, ND, for defendant and appellant;
submitted on brief.
State v. Sackenreuter
No. 20200176
Crothers, Justice.
[¶1] Dustin Sackenreuter appeals from a criminal judgment entered after his
conditional guilty plea to refusing to take a chemical breath test. He argues
that the implied consent advisory he received was insufficient under N.D.C.C.
§ 39-08-01(1)(f), that subsection (1)(f) is unconstitutionally void for vagueness,
that subsection (1)(f) is ambiguous and should be interpreted in his favor, and
that his special jury instructions should not have been rejected. We affirm.
I
[¶2] Sackenreuter was stopped by a North Dakota Highway Patrol officer for
alleged traffic violations on November 10, 2019. Following field sobriety tests,
Sackenreuter was arrested for driving under the influence. Sackenreuter was
read the implied consent advisory verbatim and asked to consent to an
Intoxilyzer breath test. Sackenreuter replied he would not. The state trooper
advised Sackenreuter, “I should also inform you that refusal to take the
chemical test I am requesting is a crime under ND law.” Sackenreuter again
refused to provide a breath sample for chemical testing.
[¶3] On January 27, 2020, a hearing was held on Sackenreuter’s motion to
dismiss the charges and to enjoin the State from bringing similar charges at
trial. Sackenreuter argued N.D.C.C. § 39-08-01(1)(f) was void for vagueness, or
in the alternative he was not advised of the consequences of refusal in
accordance with the statute. The district court denied Sackenreuter’s motion.
[¶4] The district court also rejected Sackenreuter’s three special proposed
jury instructions. The first stated, “The charge of DUI Refusal does not apply
to an individual unless the individual has been advised of the consequences of
refusing a chemical test consistent with the Constitution of the United States
and the Constitution of North Dakota.” The second instruction quoted
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N.D.C.C. §§ 39-08-01(5)(a)-(d) and 39-20-01(3)(a). The third instruction
modified North Dakota Pattern Jury Instruction K 21.10 by adding the
language of N.D.C.C. § 39-08-01(1)(f) as an essential element of the offense of
DUI refusal. Following his motion to dismiss and rejection of his proposed jury
instructions, Sackenreuter entered a conditional guilty plea, preserving his
right to appeal the district court’s decisions. Judgment was entered on June 30,
2020.
II
[¶5] Sackenreuter argues N.D.C.C. § 39-08-01(1)(f) is unconstitutionally
vague, or otherwise ambiguous. On these two issues, we summarily affirm
under N.D.R.App.P. 35.1(a)(7). See State v. Long, 2020 ND 216, ¶ 15, 950
N.W.2d 178 (holding the language of N.D.C.C. § 39-08-01(1)(f) is clear and
unambiguous).
III
[¶6] Sackenreuter argues the district court erred in denying his special jury
instructions. He asserts two of the instructions were almost verbatim from
N.D.C.C. §§ 39-08-01(1)(f) and (5)(a)-(d). Sackenreuter claims whether he was
advised of the consequences of refusal is a question of fact for the jury to decide.
According to Sackenreuter, it would be impossible for a jury to find whether he
was advised of the consequences without being instructed as to what the
consequences were.
[¶7] Addressing whether a district court erred in rejecting proposed jury
instructions would be an advisory opinion where the defendant entered a
conditional guilty plea. State v. Hammer, 2010 ND 152, ¶ 32, 787 N.W.2d 716.
Here, no jury instructions were given because no trial was held after
Sackenreuter entered a conditional guilty plea. Reviewing the district court’s
decision rejecting Sackenreuter’s proposed jury instructions would be advisory
and we decline to address this argument.
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IV
[¶8] The criminal judgment is affirmed.
[¶9] Jon J. Jensen, C.J.
Gerald W. VandeWalle
Daniel J. Crothers
Lisa Fair McEvers
Jerod E. Tufte
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