### Filed 2/21/19 by Clerk of Supreme Court
IN THE SUPREME COURT
STATE OF NORTH DAKOTA

2019 ND 43

State of North Dakota, Plaintiff and Appellant

v. Robert S. Vetter, Defendant and Appellee

No. 20180142

Appeal from the District Court of Burleigh County, South Centra l Judicial District, the Honorable James S. Hill, Judge.

REVERSED AND REMANDED.
Opinion of the Court by Tufte, Justice

. Ryan A. Keefe , Assistant State’s Attorney, Bi smarck, N.D., for plaintiff and appellant.

Chad R. McCabe , Bismarck, N.D., for defendant and appellee.State v. Vetter
No. 20180142

Tufte, Justice. [¶1] The State appeals from an order granting Robert Vetter’s mo tion to suppress chemical test evidence and motion in limine. We conclude the district court misapplied the law in interpreting statutory requirements under the implied consent law and the court failed to properly consider the totality of the circumstances to determine whether Vetter voluntarily consented to the blood tes t. We reverse the district court’s order and remand for additional findings and f or the court to determine whether Vetter’s consent was voluntary.

I [¶2] Vetter was charged with driving under the influence of alco hol under N.D.C.C. § 39-08-01 , a class B misdemeanor. Vetter moved to suppress the chemicaltest evidence, arguing the evidence was obtained as a result of an unconstitutional search and seizure. He claimed the chemical test of his blood was con ducted without a warrant, his consent was based on an inaccurate implied consentadvisory, he did not voluntarily consent to the blood test, and therefore the searchwas unreasonable and violated his constitutional rights. Vetter also filed a motionin limine, arguing the evidence of the chemical test should be excluded under N.D.C.C. § 39-20-01(3)(b) because the arresting officer did not read him the full post-ar rest implied consent advisory. [¶3] After a hearing, the district court granted Vetter’s motion s and ordered the chemical test evidence be excluded. The court found a BurleighCounty sheriff’s deputy stopped the vehicle Vetter was driving, Vetter admitted to the deputy that he had consumed alcohol that evening, and he volunteered to take a breathalyzer test. The court found the deputy read Vetter a version of the North D akota implied consent advisory, Vetter completed the preliminary breath test, the dep uty told Vetter the test

1showed his blood alcohol level was at .164%, and he was placed under arrest. The court further found the deputy read Vetter the implied consent advisory again, the deputy asked Vetter if he would consent to taking a test and Ve tter said yes, the deputy asked Vetter if he would consent to take a blood test an d Vetter said yes, and a blood test was administered. The court ruled Vetter’s consent to the blood test was coerced because he was read the implied consent advisory a seco nd time after his arrest and the advisory implied Vetter could not refuse the tes t without criminal consequences. The court concluded the blood test evidence must be suppressed because it was obtained as a result of an unconstitutional sear ch and seizure.

II [¶4] Vetter argues the State’s appeal should be dismissed becaus e the appeal is not authorized by N.D.C.C. § 29-28-07 . Under N.D.C.C. § 29-28-07(5) , the State may appeal from “[a]n order . . . suppressing evidence . . . when a ccompanied by a statement of the prosecuting attorney asserting that the appealis not taken for purpose of delay and that the evidence is a substantial proof o f a fact material in the proceeding.” Vetter claims the appeal is from an order grantin g a motion in limine, which is not an appealable order. [¶5] This Court has held appeals by the State under N.D.C.C. § 29-28-07(5) are limited to appeals from the granting of a motion to suppress un der N.D.R.Crim.P. 12(b)(3) and from the granting of a motion to return evidence under N.D.R.Crim.P. 41(e)

. See State v. Corona , 2018 ND 196, ¶¶ 7-9 , 916 N.W.2d 610. Although a motion in limine and a motion to suppress both seek to exclude evidence, appeals are limited to orders excluding evidence because it was illegally o btained—we lack appellate jurisdiction to consider orders excluding evidence fo r other reasons. Id. ; State v. Simon , 510 N.W.2d 635 (N.D. 1994) (dismissing appeal from order excluding blood test on grounds that the expert analyst was not available for cross-examination and distinguishing illegally obtained evidence from other groun ds for exclusion). Vetter filed a motion in limine seeking exclusion of the chemic al test based on an

2incomplete implied consent advi sory and a motion to suppress se eking exclusion of the same test based on a claim it was illegally obtained as a r esult of an unreasonable search. The court granted both motions and suppressed the bloo d test evidence, concluding the evidence was obtained as a result of an unconsti tutional search. The State appealed from this order and also filed a statement from the prosecuting attorney stating the appeal was not taken for the purpose of delay and t he evidence is substantial proof of a fact material to the proceeding. We conc lude the State appealed from an order granting a motion to suppress and the appeal is authorized by N.D.C.C. § 29-28-07(5)

. See State v. Fleckenstein , 2018 ND 52, ¶ 4 , 907 N.W.2d 365.

III [¶6] The State argues the district court misapplied the law in interpreting statutory requirements under the implied consent law and the court erred in determining Vetter did not voluntarily consent to the blood test. [¶7] In reviewing the district court’s decision on a motion to s uppress, this Court gives deference to the district court’s findings of fact. Fleckenstein , 2018 ND 52, ¶ 5 , 907 N.W.2d 365. The court’s decision will not be reversed on a ppeal if there is sufficient competent evidence fairly capable of supporting the court’s findings and the decision is not contrary to the manifest weight of the evidence

. Id. Questions of law are fully reviewable, and whether a finding of fact meets a leg al standard is a question of law. Id. [¶8] The Fourth Amendment of the United States Constitution and Article I, Section 8 of the North Dakota Constitution prohibit unreasonable search es and seizures. See
State v. Sauter , 2018 ND 75, ¶ 8 , 908 N.W.2d 697. “The administration of a blood test to determine blood-alcohol concentration is a search under those constitutional provisions.” Sauter , at ¶ 8 (quoting State v. Morales , 2015 ND 230, ¶ 8 , 869 N.W.2d 417). Warrantless searches are unreasonable unless they fall w ithin a recognized exception to the warrant requirement. State v. Hawkins , 2017 ND 172, ¶ 7 , 898 N.W.2d 446.

3[¶9] Voluntary consent is a recognized exception. Hawkins , 2017 ND 172, ¶ 7 , 898 N.W.2d 446. The court must consider the totality of the circum stances to determine whether consent is voluntary, including the characteristics and condition of the accused at the time of the consent and the details of the setti ng in which the consent was obtained. Id. at ¶ 8 . “[C]oercive police activity is a necessary predicate” to a finding that purported consent was not voluntary. State v. Webster , 2013 ND 119, ¶ 22 , 834 N.W.2d 283. Whether consent is voluntary is a question o f fact. Hawkins
at ¶ 7

. [¶10] The district court granted the motion to suppress and the motion in limine. The court found the deputy read Vetter the implied consent advisorybefore giving the preliminary breath test and Vetter was arrested after the preli minary breath test was administered. The court found the deputy read the implied cons ent advisory to Vetter a second time after his arrest, the deputy requested Vetter tak e a blood test without a warrant, and a blood test was administered. In determining whe ther Vetter voluntarily consented to the blood test, the court found there was no need for the deputy to have read the implied consent advisory again after the arrest and the deputy had an obligation to tell Vetter that he would suffer no criminal p enalty if he refused to consent. The court ruled the second implied consent advisory m ore than implied Vetter could not refuse the blood test without criminal consequ ences and advising Vetter that state law required him to submit to a chemical test was coercive. The Court . . . conclude[d] as a matter of law that Vetter was, in essence, threatened with an unlawful search and his “consent” w as coerced, given the inaccuracy of the second implied consent adv isory, without which it can reas onably be presumed he would not have submitted to a blood test. This was a first time DUI arrest for defendant Vetter. The fact that [the deputy] gave two different North Dakota implied consent advisories, using the words “breath test” in th e first and after the breath test was successfully completed gave the secon d advisory with the term “chemical test” is determinative. The court concluded the State failed to prove Vetter voluntarily consented to the blood test.

4[¶11] The district court found there was no need for the second implied consent advisory. Vetter and the State agree the district court was mi staken as to the law on implied consent advisories under N.D.C.C. §§ 39-20-14 and 39-20-01(3)(a) and erroneously believed the second advisory after arrest should no t have been given. Section 39-20-01(3)(a), N.D.C.C. , requires a law enforcement officer to: inform the individual charged that North Dakota law requires th e individual to take a chemical tes t to determine whether the individual is under the influence of alcohol or drugs and that refusal of the individual to submit to a test directed by the law enforcement officer may result in a revocation of the individual’s driving privileg es for a minimum of one hundred eighty days and up to three years. In addition, the law enforcement officer shall inform the individu al refusal to take a breath or urine test is a crime punishable in the sam e manner as driving under the influence. If the officer requests the in dividual to submit to a blood test, the officer may not inform the individu al of any criminal penalties until the officer has first secured a search warrant. Evidence of a chemical test is not admissible in a criminal pro ceeding if the officer fails to inform the charged individual as required by N.D.C.C. § 39-20-01(3)(a)

. See N.D.C.C. § 39-20-01(3)(b) . This Court has interpreted the statutory requirements of N.D.C.C. § 39-20-01 and held the implied consent advisory under N.D.C.C. § 39-20- 01(3) must be read after placing an individual under arrest and befo re administering a chemical test to determine alcohol concentration. See City of Grand Forks v.
Barendt , 2018 ND 272, ¶ 17 , 920 N.W.2d 735. [¶12] The district court found the deputy gave Vetter two implie d consent advisories, one before the preliminary breath test was successfully adminis tered and one after arrest and before the blood test. The court found the deputy a dvised Vetter after the arrest that: [A]s a condition of operating a motor vehicle on a highway or i n a public or private area to which the public has a right of acces s to as a condition of operating, do you consent to taking a test to dete rmine whether you are under the influence of alcohol or drugs? I mus t inform you that a North Dakota law requires you to submit to a chemica l test to determine whether you are under the influence of alcohol or drugs. Refusal to take the test as directed by law enforcement officer may result in a revocation of your driver’s license for a minimum o f a 180

5days and potentially up to three years. Do you understand thes e consequences? [¶13] The deputy read Vetter the implied consent advisory after the arrest and before administering the blood test, as N.D.C.C. § 39-20-01(3) requires. The deputy informed Vetter that the refusal could result in revocation of his driving privileges, but the deputy did not advise Vetter that refusal to take a bre ath or urine test is a crime. Because the deputy requested a blood test, he was not p ermitted to inform Vetter that refusal to take a breath or urine test is a crime p unishable in the same manner as driving under the influence. See DeForest v. N.D. Dep’t of Transp. , 2018 ND 224, ¶ 12 , 918 N.W.2d 43. The deputy did not inform Vetter of any crimi nal penalties for refusal to consent to the test. The deputy accur ately read Vetter the implied consent advisory after his arrest. The district court misapplied the law by finding that there was no need f or the second implied consent a dvisory and that the second advisory was not accurate. [¶14] Furthermore, the district court erred to the extent it hel d Vetter’s consent was coerced by the deputy’s reading of the second advisory alone. In Birchfield v. North
Dakota , 136 S. Ct. 2160, 2186 (2016), the United States Supreme Court held “that motorists cannot be deemed to have consented to submit to a blo od test on pain of committing a criminal offense.” Because the deputy requested a blood test, he did not inform Vetter of any criminal penalties for refusal to consent to the test. The evidence does not support the court’s finding that the second advisory “ more than implied” that Vetter could not refuse the blood test without criminal consequ ences. This Court has said consent to take a test is not coerced simply because an administrative penalty has been attached to refusing to take the test. Fleckenstein , 2018 ND 52, ¶ 7 , 907 N.W.2d 365. We held “that reading an accurate implied consent advisor y does not constitute per se coercion and that voluntariness of consent must be determined by the totality of the circumstances.” Id. at ¶ 9

. [¶15] Although the district court considered the patrol car vide o evidence of the stop and stated it concluded from the totality of the circumstances that the consent was not voluntary, the court did not m ake any specific findings abo ut the totality of the 6circumstances or otherwise indicate it properly considered them . The court found this was a first time DUI arrest for Vetter, which is a relevant fac tor in the voluntariness inquiry. However, the evidence does not support this finding. Vetter testified he had previously been arrested for DUI. [¶16] The district court did not properly consider the totality of the circumstances, and its decision was based on its misapplication of the law abo ut the implied consent advisory. We conclude the court misapplied the law by failing to properly consider the totality of the circumstances in determining the voluntarin ess of Vetter’s consent.

IV [¶17] We reverse the district court’s order granting Vetter’s mo tion to suppress and motion in limine. We remand for additional findings and a determination of voluntariness based upon the totality of the circumstances. [¶18] Jerod E. Tufte Daniel J. Crothers Lisa Fair McEvers Jon J. Jensen Gerald W. VandeWalle, C.J.

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