City of Minot v. Miller

Filed 10/21/20 by Clerk of Supreme Court
IN THE SUPREME COURT
STATE OF NORTH DAKOTA
2020 ND 215City of Minot, Plaintiff and Appellee
v.
Jonathan Andrew Miller, Defendant and Appellant
No. 20200121
Appeal from the District Court of Ward County, North Central Judicial
District, the Honorable Stacy J. Louser, Judge.
AFFIRMED.
Per Curiam.
Morgan R. Glines, Special Assistant City Attorney, Minot, ND, for plaintiff and
appellee.
Chad R. McCabe, Bismarck, ND, for defendant and appellant.
City of Minot v. Miller
No. 20200121
Per Curiam.
[¶1] Jonathan Miller appeals from a criminal judgment entered as a result of
a conditional guilty plea, arguing the district court erred in denying his motion
in limine to exclude results of the breath test. We affirm.
[¶2] Miller was arrested in Minot and charged with driving under the
influence. The arresting officer read Miller a post-arrest implied consent
advisory for a chemical breath test. Miller was taken to the Minot Police
Department but a second officer administered the test because the arresting
officer was not certified to perform the Intoxilyzer test. The second officer did
not read Miller an implied consent advisory.
[¶3] Miller requested a jury trial, the case was transferred to district court,
and Miller filed a motion in limine to exclude the chemical test results based
on a claim N.D.C.C. § 39-20-01 required the officer administering the chemical
test to give the implied consent advisory. The district court denied Miller’s
motion, and he entered a conditional guilty plea to the charge of driving under
the influence and reserved his right to appeal. Miller timely appealed from the
criminal judgment, arguing the district court erred in denying his motion in
limine.
[¶4] We summarily affirm under N.D.R.App.P. 35.1(a)(7). See State v. Pouliot,
2020 ND 144, ¶ 12, 945 N.W.2d 246 (“In this case, it is not necessary to
determine whether N.D.C.C. § 39-20-01(3)(a) requires the officer who provides
the implied consent warning to also be the officer who conducts the chemical
test. As a matter of law, the remedy requested by Pouliot, the exclusion of the
test through the application of N.D.C.C. § 39-20-01(b), does not apply because
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this is a criminal proceeding and because this case does not involve a refusal
to take the chemical test.”).
[¶5] Jon J. Jensen, C.J.
Daniel J. Crothers
Gerald W. VandeWalle
Jerod E. Tufte
Lisa Fair McEvers
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