Filed 05/07/20 by Clerk of Supreme Court

IN THE SUPREME COURT

STATE OF NORTH DAKOTA

2020 ND 97

State of North Dakota, Plaintiff and Appellant

v.

Stanley James Kolstad, Defendant and Appellee

No. 20190228

Appeal from the District Court of Grand Forks County, Northeast Central

Judicial District, the Honorable Donald Hager, Judge.

REVERSED AND REMANDED.

Opinion of the Court by VandeWalle, Justice.

Megan J. Kvasager Essig, Assistant State’s Attorney, Grand Forks, ND, for

plaintiff and appellant.

David D. Dusek, Grand Forks, ND, for defendant and appellee.
1

State v. Kolstad

No. 20190228

VandeWalle, Justice.

The State of North Dakota appealed from a district court order 

dismissing a criminal charge of refusing to submit to a chemical breath test. 

We reverse and remand.

I

In December 2018, Officer Nelson of the University of North Dakota 

Police Department conducted a traffic stop of Stanley Kolstad for suspicion of 

driving under the influence. Kolstad performed field sobriety tests and a 

preliminary breath test (PBT). Prior to performing the PBT, Kolstad informed 

Nelson that he had asthma. Nelson testified he was unable to obtain a PBT 

result because Kolstad was filling his cheeks with air while performing the 

test. Kolstad was arrested for DUI and refusing to submit to a chemical test.

Kolstad was transported to the UND police station to be given an 

Intoxilyzer breath test. Prior to the Intoxilyzer test, Nelson read Kolstad the 

implied consent advisory. But, because Nelson was not a certified operator of 

the Intoxilyzer machine, Officer Waltz conducted the test. Prior to the test, 

Kolstad informed Waltz he had asthma. The Intoxilyzer test results were 

deficient. Waltz testified Kolstad was not providing enough air for the test 

machine to provide a valid result.

Kolstad was charged with driving under the influence and refusing to 

submit to a chemical test. Kolstad’s counsel made a discovery request to the 

State under N.D.R.Crim.P. 16. In the request, Kolstad’s counsel requested 

copies of any audio or video recordings taken by police officers. Kolstad’s 

counsel also requested the State inform him whether any sound or video 

recordings taken of Kolstad were subsequently “altered, edited, destroyed, or 

discarded.” The State provided Kolstad’s counsel with dash camera footage 

from Nelson’s police car that had been taken at the scene of the arrest, but the 

State did not provide any body camera footage from either Nelson or Waltz. 
2

At trial, Nelson testified he read Kolstad the implied consent advisory 

from a card issued by the UND police department to all UND police officers. 

Nelson could not recall what version of the implied consent advisory was on 

the card at the time, but he testified it would be the same advisory that was on 

the cards issued to all other UND police officers. Nelson testified that his body 

camera had been recording during Kolstad’s performance of the field sobriety 

tests, during the PBT, while Nelson read Kolstad the implied consent advisory 

prior to the Intoxilyzer test, and while Kolstad performed the Intoxilyzer test. 

However, Nelson testified that because of technology problems UND was 

having with its servers at the time, his body camera footage was inadvertently 

deleted when he attempted to upload it to the servers. Because of this 

malfunction, Nelson was unable to recover or view his body camera footage.

Waltz also testified that his body camera was recording for a brief time before 

Kolstad performed the Intoxilyzer test. When asked by Kolstad’s counsel if his 

body camera footage was successfully uploaded to the server, Waltz replied 

that it was. 

Upon learning that Waltz’s body camera footage was successfully 

uploaded, Kolstad’s counsel moved to dismiss the case because the State did 

not provide any body camera footage in discovery as requested. Outside the 

presence of the jury, the court heard argument from the defense and the State.

The defense argued that in its discovery request, it asked for all audio and 

video recordings taken by police officers and was provided no body camera 

footage by the State. The defense alleged the body camera footage would have 

shown the implied consent advisory read by Nelson did not reference urine 

tests, which the defense contended would be grounds for suppression under 

State v. Vigen, 2019 ND 134, 927 N.W.2d 430. The defense also alleged the 

footage would have shown whether Kolstad was refusing the test or was unable 

to perform the test due to his asthma. The defense argued the appropriate 

remedy was for the alleged discovery violation was dismissal, stating: “For a 

violation of discovery the remedy is dismissal. Maybe the alternative is a 

continuance to be able to see what the video says, or whatever. But at this late 

stage, no, they have to have that provided.”
3

The State asserted it was never in possession of Nelson’s or Waltz’s body 

camera footage and was never able to view any of the footage. The State further 

contended that Vigen was inapplicable since it dealt with suppression of a test 

result and did not apply to refusal. The State argued that trial continue on 

“and that there be no dismissal or continuance.”

Ultimately, the court granted the defense’s motion to dismiss. The court 

stated:

Unusual situation. Usually doesn’t crop up within about the last 

hour of trial, that there is a video that some witness testified to. 

Officer Waltz certainly did testify that there was a video; that he 

had a body cam, which may go to the refusal itself. Court is going 

to grant the Motion to Dismiss Count II [refusal], because at this 

late stage it would have been a suppression motion otherwise; that 

entire test would have been a suppression.

After dismissing the refusal charge, the court took a recess.

Upon returning from the recess, the State made a motion for 

reconsideration, and additional testimony was taken from Waltz. Waltz 

testified that even though his body camera footage was successfully uploaded, 

the footage, like Nelson’s, was inadvertently deleted and unable to be viewed 

because of the technology problems with the UND servers at the time. On 

cross-examination, Waltz was asked if he ever notified the State that body 

camera footage had been recorded but was deleted because of technology

problems. Waltz replied that he verbally informed the State approximately a 

week before trial that body camera footage was recorded but was deleted.

Waltz further testified that every UND police officer was distributed the same 

card containing the same implied consent advisory, and at the time of Kolstad’s 

arrest, the implied consent advisory contained in the card only referenced 

breath tests, not urine tests.

The court heard additional argument. The defense argued that had the 

State disclosed that body camera footage had been recorded but was deleted 

because of technology problems with the UND servers, the defense had experts 

readily available to try and recover the deleted footage. The defense 
4

maintained the only remedy for the alleged discovery violation was dismissal. 

The State again argued it was never in possession of the body camera footage 

and was never able to view the footage, and that dismissal was not the proper 

remedy for the alleged discovery violation. The court denied the State’s motion 

for reconsideration, and trial was adjourned until the following day.

On the second day of trial, the court clarified that “the ruling to dismiss 

the charge was based on discovery violations, Rule 16, not as a motion in limine 

to suppress.” The court also offered the following explanation as to why 

dismissal was appropriate:

One thing I’m going to say for the record here, it’s starting to 

become an issue with discovery on these body cams, and stuff. Mr. 

Dusek yesterday argued that the State has, at least, control in 

some way of evidence, even though it’s in the hands of law 

enforcement. When those discovery responses go out, at that time 

the State should be—or any party should be contacting their 

witnesses that may hold that evidence to find out what the 

availability is. And I think yesterday the statement was, that that 

didn’t happen until a week before trial. I can understand that you 

don’t want to invest a lot of time into your witnesses before you go 

to trial in the event of a plea agreement. However, in order to 

respond to discovery, you have to do that. It’s not a good practice. 

It’s going to lead to stuff like this, that turned into a circus 

yesterday. This should have been a very clear-cut thing where we 

could have had—that’s why I pushed getting motions in limine in, 

because none of this stuff would have come up. You got a jury that 

should have been here only a day that weren’t here. We probably 

would have only heard one witness. And, actually, the end result 

would have been, I probably would have given a continuance so 

that Mr. Dusek would then try to retrieve those body cams. But he 

had a valid point, that on refusal to test the actual, quote, “refusal 

behavior” is pretty prejudicial if you can prove otherwise on a tape, 

especially if you are using a medical excuse for it. Typically, on 

other things, probably not as much. Officer Nelson’s body cam, to 

me, is not as prejudicial not having it, because you can hear voices 

on the tape. He was here to testify. He testified fully. I gave both 

of you an opportunity, before we rested yesterday, for further 

examination and neither one of you took it. So as far as I’m 

concerned, all the evidence is in. 
5

On appeal the State argues the alleged discovery violation does not rise 

to a constitutional violation of Kolstad’s due process rights, and the district 

court abused its discretion in dismissing the refusal charge. Kolstad argues the 

district court’s order dismissing the refusal charge is not appealable, and if it 

is appealable, the court did not abuse its discretion in dismissing the charge. 

II

In a criminal action, the State’s only right of appeal is expressly granted 

by statute. State v. Bernsdorf, 2010 ND 123, ¶ 5, 784 N.W.2d 126. Section 29-

28-07(1), N.D.C.C., allows the State to appeal from “[a]n order quashing an 

information or indictment or any count thereof.” However, “it is well 

established that the State cannot appeal from an acquittal.” Bernsdorf, at ¶ 5 

(citing State v. Bettenhausen, 460 N.W.2d 394, 395 (N.D. 1990)). We have 

distinguished between an order quashing an information and a judgment of 

acquittal:

This question is not controlled by the form of the trial court’s 

ruling. Rather, to determine what constitutes an acquittal, as 

distinguished from a dismissal quashing the information, we look 

at the substance of the judge’s ruling to determine whether it 

actually represents a resolution of some or all of the factual 

elements of the offense charged. If the trial court’s decision is 

based upon legal conclusions rather than a resolution of some or 

all of the factual elements of the events charged, the ruling 

amounts to a dismissal or a quashing of the information from 

which the State has a right to appeal.

State v. Erickson, 2011 ND 49, ¶ 7, 795 N.W.2d 375 (internal citations and 

quotations omitted) (quoting State v. Deutscher, 2009 ND 98, ¶ 8, 766 N.W.2d 

442).

The district court explicitly stated at trial “the ruling to dismiss the 

charge was based on discovery violations . . . .” The court’s order was based on 

a legal conclusion that the State had committed a discovery violation. The court

did not resolve any factual elements of the refusal charge. The order dismissing 

the refusal charge is appealable.
6

III

The alleged discovery violation by the State raises two issues: (1) 

whether Kolstad’s due process rights were violated as a result of the alleged 

discovery violation; and (2) whether the district court abused its discretion in 

dismissing the charge after determining the State committed a discovery 

violation.

A

Due process issues may be raised when a discovery violation has 

occurred. 

[T]his Court [has] summarized three categories of cases in which 

courts “have attempted to analyze an accused’s right to due process 

when prosecutors fail[ed] to provide evidence to the defense which 

[was] within, or potentially within, their purview.” The three 

categories of cases involving the conduct of the State, which 

resulted in the loss of evidence, include: “(1) the [S]tate’s failure 

to collect evidence in the first instance, (2) the [S]tate’s failure 

to preserve evidence once it has been collected, and (3) the 

[S]tate’s suppression of evidence which has been collected and 

preserved.”

State v. Schmidt, 2012 ND 120, ¶ 12, 817 N.W.2d 332 (emphasis in original) 

(quoting State v. Steffes, 500 N.W.2d 608, 612 (N.D. 1993)). Categories two and 

three are implicated here.

1

The second category “involves the failure to preserve evidence which has 

been collected.” Steffes, 500 N.W.2d at 613. Under the second category, “unless 

a criminal defendant can show bad faith on the part of the police, failure to 

preserve potentially useful evidence does not constitute a denial of due process 

of law.” Id. (quoting Arizona v. Youngblood, 488 U.S. 51, 58 (1988)); State v. 

Haibeck, 2006 ND 100, ¶ 7, 714 N.W.2d 52. “Bad faith, as used in cases 

involving destroyed evidence or statements, means that the state deliberately 

destroyed the evidence with the intent to deprive the defense of information; 

that is, that the evidence was destroyed by, or at the direction of, a state agent 
7

who intended to thwart the defense.” State v. Ostby, 2014 ND 180, ¶ 15, 853 

N.W.2d 556 (quoting Steffes, at 613). An act of bad faith on the part of the police 

is relevant because it leads to an inference that the evidence is exculpatory. 

See Steffes, at 613.

Here, there is no evidence of bad faith on the part of Officers Nelson or 

Waltz, the UND Police Department, or the State. The officers’ body camera

footage was not deliberately destroyed by Nelson, Waltz, or the State’s

Attorney to deprive Kolstad of its contents. Even though the body camera

footage had been collected, the State did not fail to preserve the evidence in 

bad faith.

2

Category three is “the [S]tate’s suppression of evidence which has been 

collected and preserved.” Schmidt, 2012 ND 120, ¶ 16, 817 N.W.2d 332. In 

Brady v. Maryland, 373 U.S. 83, 87 (1963), the United States Supreme Court 

held that suppression by the prosecution of evidence favorable to an accused 

violates due process if the evidence is material to guilt or punishment 

irrespective of the good faith or bad faith of the prosecution. City of Grand 

Forks v. Ramstad, 2003 ND 41, ¶ 9, 658 N.W.2d 731. “To establish a Brady

violation, the burden is upon the defendant to show: ‘(1) the government 

possessed evidence favorable to the defendant; (2) the defendant did not 

possess the evidence and could not have obtained it with reasonable diligence; 

(3) the prosecution suppressed the evidence; and (4) a reasonable probability 

exists that the outcome of the proceedings would have been different if the 

evidence had been disclosed.’” Id. (quoting State v. Goulet, 1999 ND 80, ¶ 15, 

593 N.W.2d 345).

Evidence is favorable to the defendant if it is exculpatory or because it is 

impeaching. Id. Exculpatory evidence is “[e]vidence tending to establish a 

criminal defendant’s innocence.” Evidence, Black’s Law Dictionary (11th ed. 

2019). For purposes of this case, we assume the body camera footage was 

favorable to the defense. 
8

Prong two has also been satisfied. Kolstad did not possess the body 

camera footage, and the only way he could have obtained the footage was by 

requesting it from the State.

Under prong three, the State suppresses evidence when it “collects and 

preserves evidence, but withholds that evidence when the defendant requests 

it, or when it otherwise becomes material to the defense.” Steffes, 500 N.W.2d 

at 612. Officers Nelson and Waltz collected body camera footage. However, the 

footage was never preserved because, due to technology problems at the time, 

it was inadvertently deleted when it was uploaded to the server. The body 

camera footage was never able to be viewed by Nelson, Waltz, or the State’s 

Attorney. With the body camera footage having been deleted, there was no 

preserved evidence for the State to suppress. Therefore, prong three has not 

been satisfied. 

The State’s failure to inform the defense that body camera footage had 

been collected but was inadvertently deleted after the defense specifically 

requested such information does not change our analysis of prong three. Here, 

the State’s failure to disclose information requested by the defense was a 

discovery violation, but it does not amount to a Brady violation because the 

audio and video evidence requested by the defense had not been preserved. For 

the State to commit a Brady violation, the evidence suppressed must have been 

collected and preserved. Evidence that has not been collected or preserved 

raises issues involving categories one and two but does not invoke Brady or an 

analysis under category three. 

Because prong three has not been satisfied, we need not decide whether 

a reasonable probability exists that the outcome of the proceedings would have 

been different had the evidence been disclosed. 

Kolstad’s due process rights were not violated as a result of the 

prosecution’s failure to provide the defense with evidence that was potentially 

within its purview. Under category two, the State did not in bad faith fail to 

preserve Nelson’s or Waltz’s body camera footage. And because the officers’ 
9

body camera footage was not preserved, the State did not suppress the body 

camera footage that had been collected under category three. 

B

The State argues dismissing the refusal charge because of the discovery 

violation was an abuse of discretion. District court decisions regarding 

discovery violations are reviewed under the abuse of discretion standard. State 

v. Rolfson, 2018 ND 51, ¶ 6, 907 N.W.2d 780 (citing State v. Horn, 2014 ND 

230, ¶ 7, 857 N.W.2d 77; State v. Loughead, 2007 ND 16, ¶ 17, 726 N.W.2d 

859). “A district court abuses its discretion if it acts in an arbitrary, 

unreasonable, or unconscionable manner, if its decision is not the product of a 

rational mental process leading to a reasoned determination, or if it 

misinterprets or misapplies the law.” Id. (citing State v. Myers, 2017 ND 265, 

¶ 6, 903 N.W.2d 520). 

Under N.D.R.Crim.P 16(a)(1)(D), the State is required to provide the 

defendant with body camera footage if it is within the State’s possession, 

custody, or control and has been requested by the defense. The State is under 

a continuing duty to disclose discovery materials requested by the defense. 

N.D.R.Crim.P. 16(c). If a party fails to comply with a discovery request, the 

court may:

(i) order that party to permit the discovery or inspection: specify 

its time, place and manner; and prescribe other just terms and 

conditions;

(ii) grant a continuance;

(iii) prohibit that party from introducing the undisclosed evidence;

(iv) relieve the requesting party from making a disclosure required 

by this rule; or

(v) enter any other order that is just under the circumstances.

N.D.R.Crim.P. 16(d)(2). Regarding discovery violations under Rule 16, we have 

stated: 

Rule 16 is not a constitutional mandate, but is an 

evidentiary discovery rule designed to further the interests of 

fairness. Noncompliance results in a constitutionally unfair trial 
10

only where the barriers and safeguards are so relaxed or forgotten 

the proceeding is more of a spectacle or a trial by ordeal than a 

disciplined contest. If the error is not of constitutional magnitude, 

it is reversible only upon a showing that the defendant has been 

denied substantial rights. No substantial rights are affected when 

it is clear that the defendant was not significantly prejudiced by 

the discovery violation.

When apprised of a discovery violation, a trial court is 

authorized by Rule 16(d)(2), N.D.R.Crim.P., to use various 

remedies, but should impose the least severe sanction that will 

rectify the prejudice, if any, to the opposing party.

State v. McNair, 491 N.W.2d 397, 400 (N.D. 1992) (internal citations and 

quotations omitted). In civil cases, we have said that dismissal of an action for 

discovery violations is one of the most severe sanctions available to a court, 

and should only be imposed if the violation is deliberate or in bad faith. See, 

e.g., Lang v. Bank of North Dakota, 530 N.W.2d 352, 355 (N.D. 1995); Dakota 

Bank & Trust Co. of Fargo v. Brakke, 377 N.W.2d 553, 556 (N.D. 1985). 

Accordingly, dismissal “should be used sparingly and only in extreme 

situations and should not be used if an alternative, less drastic sanction is 

available and just as effective.” Dakota Bank & Trust Co., at 556 (citing 

Thompson v. Ziebarth, 334 N.W.2d 192 (N.D.1983); St. Aubbin v. Nelson, 329 

N.W.2d 874 (N.D.1983)).

Though much of the discussion at trial surrounding dismissal of the 

refusal charge involved suppression of the refusal under State v. Vigen, 2019 

ND 134, 927 N.W.2d 430, the district court clarified its statements from the 

first day of trial by stating it dismissed the refusal charge because of a 

discovery violation: “the ruling to dismiss the charge was based on discovery 

violations, Rule 16, not as a motion in limine to suppress.” Because the alleged 

discovery violation here was not a violation of Kolstad’s constitutional due 

process rights, the question becomes whether the violation significantly 

prejudiced Kolstad. In its discovery request, the defense requested any sound 

or video recordings taken of Kolstad that were subsequently “altered, edited, 

destroyed, or discarded.” The State committed a discovery violation by failing 

to inform the defense that body camera footage had been collected but was

inadvertently deleted due to technology problems. Kolstad was significantly 
11

prejudiced by the violation because the deleted video footage may have proved 

or disproved Kolstad’s defense that he could not perform the breath test 

because of his asthma and whether he was read the correct implied consent 

advisory. Therefore, we must decide whether the district court imposed the 

least severe sanction to rectify the prejudice Kolstad sustained as a result of 

the violation.

Because there was no evidence of bad faith or a deliberate attempt to 

thwart the defense on behalf of the State, the district court should have 

considered an alternative, less severe sanction other than dismissal to remedy 

the discovery violation. At trial, the defense and the court both mentioned a 

continuance as a possible remedy for the discovery violation. However, the 

court did not inquire into whether a continuance or an alternative sanction 

was available or appropriate. Rather, the district court stated dismissal was 

appropriate because the case was in the midst of trial and because the defense 

did not have an opportunity to recover the deleted footage prior to trial.

Being in the midst of trial was not alone a sufficient reason for the court 

to not consider a continuance or other less severe sanction. See State v. Bonner, 

361 N.W.2d 605, 612 (N.D. 1985); State v. Mbulu, 2018 ND 73, ¶ 1, 908 N.W.2d 

732 (per curiam); see also City of Grand Forks v. Ramstad, 2003 ND 41, ¶ 32, 

658 N.W.2d 731 (Maring, J., concurring specially). Furthermore, the court did 

not inquire into whether the defense was reasonably likely to recover the 

deleted footage or the time it would take the defense to recover the footage if it 

could be recovered. Giving the defense an opportunity to obtain the deleted 

body camera footage may have rectified any prejudice sustained by the defense. 

After reviewing the entire record, there is nothing to indicate the district

court adequately considered an alternative or less severe sanction to dismissal. 

The court resorted to the most severe sanction available to it. The court erred

by not considering whether a continuance or other less severe sanction was 

appropriate. 
12

IV

Because the district court abused its discretion by failing to consider an 

alternative, less severe sanction other than dismissing the refusal charge, the 

remaining issues raised on appeal are unnecessary to our decision, and we will 

not address them.

V

The district court’s order dismissing the refusal charge is reversed, and 

we remand to the district court for further proceedings.

Gerald W. VandeWalle

Jon J. Jensen, C.J.

Daniel J. Crothers

Jerod E. Tufte

Lisa Fair McEvers