City of Dickinson v. Vaagen , 2019 ND 151 ( 2019 )

Filed 6/27/19 by Clerk of Supreme Court
IN THE SUPREME COURT
STATE OF NORTH DAKOTA
2019 ND 151City of Dickinson, Plaintiff and Appellee
v.
Kalden Vaagen, Defendant and Appellant
No. 20190053
Appeal from the District Court of Stark County, Southwest Judicial District,
the Honorable Rhonda R. Ehlis, Judge.
REVERSED AND REMANDED.
Per Curiam.
Christina M. Wenko, Dickinson, ND, for plaintiff and appellee; submitted on
brief.
Danny L. Herbel, Bismarck, ND, for defendant and appellant; submitted on
brief.
City of Dickinson v. Vaagen
No. 20190053
Per Curiam.
[¶1] Kalden Vaagen appeals from a criminal judgment finding him guilty of
driving under the influence. At the time of Vaagen’s arrest, the arresting officer read
Vaagen North Dakota’s implied consent advisory which informed Vaagen that refusal
to take a chemical breath test is a crime punishable in the same manner as driving
under the influence, but omitted the portion of the advisory regarding the punishment
associated with refusal to submit to a urine test. Vaagen submitted to a chemical
breath test.
[¶2] Vaagen argues the district court erred by denying his motion to suppress the
chemical test records and results because the arresting officer failed to inform Vaagen
of a complete and specific implied consent advisory under N.D.C.C. § 39-20-01(3)(a).
We agree, concluding State v. Vigen, 2019 ND 134, ¶ 14, is dispositive of this appeal.
We summarily reverse and remand the district court’s judgment under N.D.R.App.P.
35.1(b), concluding the arresting officer failed to fully inform Vaagen of the contents
of N.D.C.C. § 39-20-01(3)(a). See Vigen, at ¶ 14 (omission of the portion of the
implied consent advisory that informs arrestees of the consequences for refusing to
submit to a urine test is a failure to fully inform the arrestee of the contents of
N.D.C.C. § 39-20-01(3)(a) and therefore any evidence obtained as a result of the
breath test is inadmissable under N.D.C.C. § 39-20-01(3)(b)).
[¶3] Daniel J. Crothers
Jerod E. Tufte
Jon J. Jensen
McEvers, Justice, dissenting.
[¶4] I respectfully dissent. For the reasons stated in my dissent in State v. Bohe,
2018 ND 216, 917 N.W.2d 497, I would affirm the district court judgment. I am still
of the opinion that the legislature did not intend for law enforcement to provide
misinformation to a driver.
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[¶5] Lisa Fair McEvers
VandeWalle, Chief Justice, dissenting.
[¶6] I dissent. For the reasons stated in my dissent in Schoon v. N.D. Dep’t of
Transportation, 2018 ND 210, 917 N.W.2d 199, I would affirm the district court
judgment in this case.
[¶7] Gerald W. VandeWalle, C.J.
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