State v. Long

Filed 10/21/20 by Clerk of Supreme Court
IN THE SUPREME COURT
STATE OF NORTH DAKOTA
2020 ND 216State of North Dakota, Plaintiff and Appellee
v.
Kimberly Long, Defendant and Appellant
No. 20200050
Appeal from the District Court of Morton County, South Central Judicial
District, the Honorable James S. Hill, Judge.
AFFIRMED.
Opinion of the Court by Jensen, Chief Justice.
Chase R. Lingle, Assistant State’s Attorney, Mandan, ND, for plaintiff and
appellee.
Danny L. Herbel, Bismarck, ND, for defendant and appellant.
State v. Long
No. 20200050
Jensen, Chief Justice.
[¶1] Kimberly Long appeals from a criminal judgment entered following her
conditional guilty plea to refusal to submit to a chemical test, a class B
misdemeanor. Long argues N.D.C.C. § 39-08-01(1)(f) is ambiguous, and the
legislative history requires a driver to be informed of their right to refuse to
take a test to determine their blood alcohol content. We conclude N.D.C.C. §
39-08-01(1)(f) is not ambiguous and does not require a driver to be informed of
a right to refuse to submit to a chemical test to determine their blood alcohol
content. We affirm.
I
[¶2] The facts of this case are not in dispute. On September 8, 2019, a
highway patrol trooper found Long unconscious in the driver’s seat of a vehicle
parked in the median on a highway. After waking Long and briefly visiting
with her, the trooper requested Long submit to a preliminary breath test to
which she refused. Long was placed under arrest and read an implied consent
advisory. The advisory contained language that refusal to submit to a chemical
test was a crime as well as the potential penalties for refusing. The trooper’s
advisory did not inform Long of a right to refuse chemical testing. Long refused
to submit to the test and was subsequently charged with refusal to submit to
chemical testing.
[¶3] Long moved to dismiss the charge arguing N.D.C.C. § 39-08-01(1)(f) was
ambiguous, and Long was not advised of her right to refuse the chemical test.
After a hearing, the court denied Long’s motion to dismiss. The district court
found the statutory language of N.D.C.C. § 39-08-01(1)(f) was unambiguous
and does not require an advisement of the right to refuse; any legislative intent
to include a right to refusal is not reflected in the statutory language; and
informing an individual of a right to refuse is incomplete or a misstatement of
law.
1
[¶4] After the court’s denial of her motion to dismiss, Long entered a
conditional plea of guilty preserving her right to appeal. On appeal, Long
argues N.D.C.C. § 39-08-01(1)(f) is ambiguous and, because it is ambiguous,
extrinsic aids should be considered to ascertain the legislative intent of the
statute. Long asserts the ambiguities in N.D.C.C. § 39-08-01(1)(f) arise from
the statute’s use of the term “consequences” and the phrase “consistent with
the Constitution of the United States and the Constitution of North Dakota.”
Long contends, upon a review of the legislative history, an individual must be
advised of a right to refuse the test, and the trooper did not comply with the
legislative intent by failing to inform Long of her right to refuse the chemical
test.
II
[¶5] This Court reviews preliminary criminal proceedings such as a motion
to dismiss as follows:
We will not reverse a trial court’s findings of fact in preliminary
criminal proceedings if, after the conflicts in the testimony are
resolved in favor of affirmance, there is sufficient competent
evidence fairly capable of supporting the findings and if the trial
court’s decision is not contrary to the manifest weight of the
evidence.
State v. Norton, 2019 ND 174, ¶ 7, 930 N.W.2d 190, (quoting State v. Jones,
2002 ND 193, ¶ 19, 653 N.W.2d 668). Interpretation of a statute is a question
of law, fully reviewable on appeal. Schulke v. Panos, 2020 ND 53, ¶ 8, 940
N.W.2d 303 (citation omitted).
III
[¶6] Our primary goal when interpreting a statute is to determine the intent
of the legislature by first looking to the plain language of the statute and
attempting to give each word, phrase, and sentence its ordinary meaning.
Schulke, 2020 ND 53, at ¶ 8 (citations omitted). When a provision at issue is
unambiguous, this Court looks to the plain language of the statute to ascertain
its meaning. State v. Comes, 2019 ND 290, ¶ 7, 936 N.W.2d 114 (citing State v.
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Kostelecky, 2018 ND 12, ¶ 8, 906 N.W.2d 77); see also N.D.C.C. § 1-02-05. If a
statute is ambiguous a court may reference extrinsic aids, such as legislative
history, to interpret the statute. Denault v. State, 2017 ND 167, ¶ 10, 898
N.W.2d 452. “A statute is ambiguous when it is susceptible to differing, but
rational, meanings.” Schulke, at ¶ 8 (quoting Guthmiller v. Director, N.D. Dep’t
of Transp., 2018 ND 9, ¶ 8, 906 N.W.2d 73).
[¶7] Statutes are construed as a whole and harmonized to give meaning to
related provisions. State v. Marcum, 2020 ND 50, ¶ 21, 939 N.W.2d
840 (quoting State v. Kuruc, 2014 ND 95, ¶ 32, 846 N.W.2d 314). This Court
considers the context of the statutes and the purposes for which they are
enacted. Id. “We also consider the actual language, its connection with other
clauses, and the words or expressions which obviously are by design omitted.
In construing statutes and rules, the law is what is said, not what is unsaid,
and the mention of one thing implies exclusion of another.” State v. Welch,
2019 ND 179, ¶ 7, 930 N.W.2d 615 (quoting Sanderson v. Walsh County, 2006
ND 83, ¶ 16, 712 N.W.2d 842).
[¶8] Section 39-08-01(1), N.D.C.C., provides, in part:
1. A person may not drive or be in actual physical control of any
vehicle upon a highway or upon public or private areas to which
the public has a right of access for vehicular use in this state if any
of the following apply:
….
e. That individual refuses to submit to any of the following:
(1) A chemical test, or tests, of the individual’s blood, breath, or
urine to determine the alcohol concentration or presence of other
drugs, or combination thereof, in the individual’s blood, breath, or
urine, at the direction of a law enforcement officer under section
39-06.2-10.2 if the individual is driving or is in actual physical
control of a commercial motor vehicle; or
(2) A chemical test, or tests, of the individual’s blood, breath, or
urine to determine the alcohol concentration or presence of other
drugs, or combination thereof, in the individual’s blood, breath, or
urine, at the direction of a law enforcement officer under section
39-20-01.
3
Subdivision f in N.D.C.C. § 39-08-01(1) was added during the 2019 legislative
session and states, in part:
Subdivision e 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.
A
[¶9] Long argues N.D.C.C. § 39-08-01(1)(f) is ambiguous for two reasons.
First, Long asserts the statute is ambiguous because the consequences of
refusal are not identified in the statutory language.
[¶10] The plain language of N.D.C.C. § 39-08-01(1)(f) requires a driver be
advised of the consequences for refusing to submit to a chemical test before the
individual’s driving privileges are subject to restrictions under N.D.C.C. § 39-
08-01(1)(e). The statutory language of N.D.C.C. § 39-08-01(1)(f) limits the
advisory to “consequences of refusing,” and nothing more is required.
Furthermore, any interpretation of the statute including the right to refuse in
the advisory is not rational because “rights” and “consequences” are not
interchangeable in meaning. See Black’s Law Dictionary, 369 (10th ed. 2014)
(defining “consequence” as “a result that follows as an effect of something that
came before”); Black’s Law Dictionary, 1517 (10th ed. 2014) (defining, in part,
“right” as “a power, privilege, or immunity secured to a person by law”). The
mention of “consequences” implies the exclusion of “rights.”
[¶11] Section 39-08-01(1)(f), N.D.C.C., does not provide for a driver to be
advised of a right to refuse a chemical test. A right to refuse is not a
consequence of refusal. As such, we conclude the statute unambiguously limits
the advisory to inform drivers of the consequences of refusing a chemical test
and does not extend to informing drivers of a right to refuse. Thus, the use of
the word “consequences” does not render N.D.C.C. § 39-08-01(1)(f) ambiguous.
4
B
[¶12] In Long’s second argument that N.D.C.C. § 39-08-01(1)(f) is ambiguous,
she contends the phrase “consistent with the Constitution of the United States
and the Constitution of North Dakota” is unclear. Long argues the phrase
renders the statute ambiguous because the statute does not specify which state
and federal provisions must be observed when an officer advises an individual
of the consequences for refusing a chemical test.
[¶13] A statute is presumed to comply with the state and federal constitutions.
N.D.C.C. § 1-02-38. An appellate court’s job is to interpret the law the
legislature has enacted and decide whether it is consistent with the
Constitution. Murphy v. Nat’l Collegiate Athletic Ass’n, 138 S. Ct. 1461, 1485,
200 L. Ed. 2d 854 (2018). Our laws frequently use the phrase “consistent with
the Constitution” to acknowledge the presumption of compliance with the state
and federal constitutions. See, e.g., N.D.C.C. § 21-09-03 (“All bonds heretofore
issued by any public body for any purpose and in any manner consistent with
the constitution of the state.… are hereby validated, ratified, approved and
confirmed”) (emphasis added); N.D.C.C. § 14-12.2-04(1)(g) (a state tribunal has
jurisdiction over a nonresident individual or the individual’s guardian or
conservator if “[t]here is any other basis consistent with the constitutions of this
state and the United States for the exercise of personal jurisdiction.”) (emphasis
added).
[¶14] Here, we find the phrase “consistent with the Constitution of the United
States and the Constitution of North Dakota” in N.D.C.C. § 39-08-01(1)(f) does
not require any specific provisions within the state or federal constitutions be
included in an advisory of consequences for refusing. Rather, the plain
language of the phrase establishes an unambiguous acknowledgement of the
presumption that the statute, and the advisory therein, are in compliance with
the state and federal constitutions. As such, the phrase “consistent with the
Constitution of the United States and the Constitution of North Dakota” does
not render N.D.C.C. § 39-08-01(1)(f) ambiguous.
5
IV
[¶15] We conclude the language of N.D.C.C. § 39-08-01(1)(f) is clear and
unambiguous, and the statute does not require a driver be informed of a right
to refuse chemical testing. We need not resort to legislative history, or other
extrinsic aids, to construe the plain language of that statute. The criminal
judgment is affirmed.
[¶16] Jon J. Jensen, C.J.
Daniel J. Crothers
Gerald W. VandeWalle
Jerod E. Tufte
Lisa Fair McEvers
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