### Filed 3/13/19 by Clerk of Supreme Court IN THE SUPREME COURT STATE OF NORTH DAKOTA

2019 ND 73

State of North Dakota, Plaintiff and Appellee

v. Jasmine Ellen Nice, Defendant and Appellant

No. 20180350

Appeal from the District Court of Burleigh County, South Centra l Judicial District, the Honorable Thomas J. Schneider, Judge.
AFFIRMED. Opinion of the Court by VandeWalle, Chief Justice

. Tessa M. Vaagen, Assistant State’s Attorney, Bismarck, ND, for plaintiff and appellee. Yancy B. Cottrill, Bismarck, ND, for defendant and appellant. Paul R. Emerson, Assistant Attorney General, Bismarck, ND, for amicus curiae Office of Attorney General.State v. Nice No. 20180350

VandeWalle, Chief Justice. [¶1] Jasmine Ellen Nice appealed from a district court judgment entered on her conditional plea of guilty to driving under the influence-refus al-first offense in violation of N.D.C.C. § 39-08-01(1)(e)(2) pending an appeal of the court’s order denying her motion to dismiss. Nice argues N.D.C.C. § 39-08-01( 1)(e) is unconstitutional, the de puty violated her due process rights wh en he read her the implied consent advisory multiple times, and the State’s failur e to execute the search warrant should result in dismissal of the refusal charge. Becau se Nice refused to take a urine test after a search warrant was secured, we affirm the judgment.

I [¶2] On April 25, 2018, a deputy stopped a vehicle driving witho ut tail lights. The driver, Nice, admitted smoking marijuana earlier in the day. Ni ce consented to field sobriety testing and a prelimin ary breath test. After completin g the tests, the deputy read Nice the implied consent advisory and stated the test woul d be for urine. The advisory included the criminal penalties for refusing a breath or urine test. Nice consented to the test. The deputy read Nice her Miranda rights and arrested her for driving under the influence of drugs. After some discussion with Nice, the officer reread her the implied consent advisory including criminal penalt ies. Nice declined to take the test. Another officer then informed the deputy he need ed a warrant for a urine test. Other officers transported Nice to jail and the deputy ob tained a search warrant. At the jail, the deputy informed Nice he had a warrant for a urine test and read the implied consent advisory for urine from the search warrant. Nic e refused to provide a urine sample. [¶3] After she refused to comply with the warrant, the State cha rged Nice with driving under the influen ce-refusal-first offense, a class B mi sdemeanor. Nice filed

1a motion to dismiss on June 21, 2018. The district court issued an order denying the motion to dismiss. Nice entered a conditional plea of guilty on September 7, 2018.

II [¶4] Nice argues the district court erred in denying her motion to dismiss because N.D.C.C. § 39-08-01(1)(e) is unc onstitutional, Nice’s due proce ss rights were violated by the deputy reading her the implied consent advisory multiple times, and the State’s failure to execute the search warrant should result in dismissa l of the refusal charge. The State and the Attorney General allege Nice cannot challenge the constitutionality of N.D.C.C. § 39-08-01(1)(e) because the State did not charge h er with refusing a chemical test, in this case a urine test, until after a warrant was obtained. [¶5] This Court will not reverse a trial court’s findings of fac t in preliminary criminal proceedings, such as a motion to dismiss, if, after th e conflicts in the testimony are resolved in favor of affirmance, there is suffici ent 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. Thill , 2005 ND 13, ¶ 6, 691 N.W.2d 230. Our review is limited to only those issues raised in the d istrict court. State v. Gray , 2017 ND 108, ¶ 6, 893 N.W.2d 484. [¶6] Nice argues N.D.C.C. § 39-08-01(1)(e) is facially unconstitutional because its language is misleading in light of Birchfield v. North Dakotaand State v. Helm

. See Birchfield , 136 S.Ct. 2160 (2016); Helm , 2017 ND 207, 901 N.W.2d 57. Section 39- 08-01(1)(e)(2), N.D.C.C., makes it a crime for an individual to refuse to submit to “[a] chemical test, or tests, of the individual’s blood, breath, or urine to determine the alcohol concentration or presence of other drugs, or combinatio n thereof, in the individual’s blood, breath, or urine, at the direction of a lawenforcement officer under section 39-20-01.” In Helm , this Court held urine is treated like blood for DUI purposes and an individual cannot be prosecuted for refusing to submit to a warrantless urine test. 2017 ND 207, at ¶ 16.

2[¶7] Here, the State did not charge Nice with refusal of a warrantless urine test. “Generally, a party may only challenge the constitutionality of a statute as applied to that party.” State v. Dvorak , 2000 ND 6, ¶ 28, 604 N.W.2d 445. Originally, the deputy arrested Nice for DUI. After obtaining a search warrant, the de puty again read Nice the implied consent advisory for a urine test, which Nice refus ed. At this point, the State charged Nice with refusing to consent to a urine test pur suant to a search warrant. Because the State did not charge Nice with refusing a urine test until after the deputy obtained a warrant, Nice cannot successfully challenge the constitutionality of N.D.C.C. § 39-08-01(1)(e).

III [¶8] Nice argues the fact the deputy read her the N.D.C.C. § 39- 20-01(3)(a) implied consent advisory three times violated her due process rights. T he implied consent advisory Nice received stated refusal of a urine test is a crim e punishable in the same manner as a DUI. See N.D.C.C. § 39-20-01(3)(a). Two readings of the implied consent advisory occurred prior to the deputy obtaining a searc h warrant. Nice argues the multiple readings of the advisory misinformed her of her ri ght to refuse a warrantless test and negated her ability to make an informed de cision. [¶9] When deciding a due process claim, we consider if a constit utionally protected property or liberty interest is at stake and, if so, if minimum procedural due process requirements were met. State v. Loomer , 2008 ND 69, ¶ 6, 747 N.W.2d 113. Due process is flexible and must be considered on a case-by-case ba sis. Whitecalfe v. N.D. Dep’t of Transp ., 2007 ND 32, ¶ 20, 727 N.W.2d 779. “In all cases, the totality of the circumstances must be considered.” Krueger v. N.D. Dep’t of Transp. , 2018 ND 108, ¶ 19, 910 N.W.2d 850. [¶10] We recently stated “[s]ole reliance on multiple recitation s of the advisory by the deputy is insufficient to show involuntariness of consent.” Krueger , 2018 ND 108, ¶ 19, 910 N.W.2d 850. The same is true in cases of refusal. Nic e offered no evidence to the district court to show her confusion. She cannot now rel y solely on multiple

3recitations of the implied consent advisory to prove violations of her due process rights.

IV [¶11] Nice argues the refusal charge should be dismissed because the State did not execute the search warrant and obtain a urine sample after her refusal. However, Nice did not adequately brief this issue or provide support for her assertion the State is required to execute a search warrant, especially in light of N. D.C.C. § 39-20-04. We decline to address inadequately briefed issues. See Daniels v. Ziegler , 2013 ND 157, ¶ 13, 835 N.W.2d 852; Smestad v. Harris , 2011 ND 91, ¶ 5, 796 N.W.2d 662.

V [¶12] We affirm the district court’s judgment. [¶13] Gerald W. VandeWalle, C.J. Jerod E. Tufte Daniel J. Crothers Lisa Fair McEvers Jon J. Jensen

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