IN THE SUPREME COURT

STATE OF NORTH DAKOTA

2021 ND 172

City of Jamestown, Plaintiff and Appellee

v.

Bonnie Lynn Nygaard, Defendant and Appellant

No. 20210049

Appeal from the District Court of Stutsman County, Southeast Judicial 

District, the Honorable Troy J. LeFevre, Judge.

AFFIRMED.

Opinion of the Court by Crothers, Justice.

Abbagail C. Geroux, Jamestown, ND, for plaintiff and appellee.

Drew T. Hushka (argued) and Luke T. Heck (on brief), Fargo, ND, for defendant 

and appellant.

Danny L. Herbel (on brief), Bismarck, ND, for amicus curiae North Dakota 

Association of Criminal Defense Lawyers.

FILED 

IN THE OFFICE OF THE 

CLERK OF SUPREME COURT 

SEPTEMBER 30, 2021 

STATE OF NORTH DAKOTA
1

City of Jamestown v. Nygaard

No. 20210049

Crothers, Justice.

[¶1] Bonnie Lynn Nygaard appeals from a criminal judgment entered after 

her conditional plea to refusing to take a chemical breath test was accepted. 

We affirm.

I

[¶2] In the early morning of March 8, 2020, Stutsman County Sheriff Deputy 

Brian Davis conducted a traffic stop of a vehicle driven by Nygaard. Davis 

approached the vehicle and began speaking with Nygaard. During the

conversation, Davis smelled an odor of alcohol and observed Nygaard’s blood 

shot eyes, slurred speech and inability to focus. Davis asked for Nygaard’s 

license, proof of insurance and vehicle registration. After receiving the 

documents, Davis asked Nygaard if she had been drinking. Nygaard said she 

had two drinks an hour prior to the traffic stop. 

[¶3] Jamestown Police Officer Chance Renfro subsequently arrived at the 

scene. Renfro talked to Nygaard and observed the same signs of impairment. 

Renfro asked Nygaard to come back to his car where she sat in the front 

passenger seat. After an initial conversation, Renfro requested Nygaard 

complete a Horizontal Gaze Nystagmus (HGN) test. Renfro observed six of six 

clues during the HGN test after which he provided Nygaard an implied consent 

advisory and requested a preliminary breath screening test. Nygaard 

consented to taking the test. The test reported an alcohol content of .203. 

Renfro then placed Nygaard under arrest. 

[¶4] Renfro transported Nygaard to the Stutsman County Correctional 

Center. Renfro again provided Nygaard with an implied consent advisory and 

requested a chemical breath test. Nygaard consented to taking the test. During 

the first breath sample, Nygaard obstructed the air flow and provided an 

insufficient sample. Renfro told Nygaard she could take the test a second time 

but if a sufficient sample was not provided, he would issue a citation for DUI-
2

Refusal. Nygaard agreed to take the second test and again provided an 

insufficient sample.

[¶5] The City of Jamestown charged Nygaard with DUI-Refusal under 

Jamestown Municipal Code § 21-04-06. Nygaard requested the case be 

transferred to district court for a jury trial. Nygaard moved to suppress 

evidence and dismiss her charge. After the district court denied her motion, 

Nygaard conditionally pled guilty and preserved her right to appeal. 

II

[¶6] Nygaard argues the plain meaning of N.D.C.C. § 39-08-01(1)(f) requires 

advice of criminal penalties to drivers before they can be charged with refusing 

a chemical breath test. Nygaard also contends we wrongly decided City of 

Jamestown v. Casarez, 2021 ND 71, 958 N.W.2d 467, and the case should be 

overruled.

A

[¶7] Nygaard argues N.D.C.C. § 39-08-01(1)(f) applies to her case despite 

being prosecuted under Jamestown Municipal Code § 21-04-06. 

[¶8] Section 39-08-01(1)(f), N.D.C.C., states: “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.” 

[¶9] Nygaard was prosecuted under Jamestown Municipal Code § 21-04-

06(1)(e)(ii), which at the time of her arrest read:

“(1) A person may not drive or be in actual physical control of any 

vehicle upon a street or upon public or private areas to which the 

public has right of access for vehicular use in this city if any of the 

following apply:

. . . . 

(e) That individual refused to submit to . . . . :

. . . . 
3

(ii) 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 discretion of a law enforcement officer under Section 

39-20-01 of the North Dakota Century Code[.]”

Jamestown Mun. Code Ord. 1409.1

[¶10] In Casarez, this Court analyzed the same Jamestown Ordinance at issue 

here and N.D.C.C. § 39-08-01. 2021 ND 71, ¶ 6. We recognized subdivision f as 

the only difference between the Ordinance and the statute. Id. at ¶ 14. We held 

subdivision f was part of amendments removing a statutory exclusionary rule 

and did not “serve as a prohibition or authorization of any particular thing.” 

Id. Thus, there was no conflict between the Ordinance and the statute. Id. 

[¶11] Because N.D.C.C. § 39-08-01 and Jamestown Municipal Code § 21-04-06 

are consistent, we will examine Nygaard’s arguments as presented.

B

[¶12] Nygaard asserts the plain meaning of N.D.C.C. § 39-08-01(1)(f) requires 

advice of criminal penalties for refusing a chemical breath test to drivers before 

they can be prosecuted. “Interpretation of a statute is a question of law, fully 

reviewable on appeal.” State v. Long, 2020 ND 216, ¶ 5, 950 N.W.2d 178.

[¶13] “When the wording of a statute is clear and free of all ambiguity, the 

letter of it is not to be disregarded under the pretext of pursuing its spirit.” 

N.D.C.C. § 1-02-05. “When a provision at issue is unambiguous, this Court 

looks to the plain language of the statute to ascertain its meaning.” Long, 2020 

ND 216, ¶ 6 (citing State v. Comes, 2019 ND 290, ¶ 7, 936 N.W.2d 114). “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

1 After Nygaard was arrested, Jamestown amended the Ordinance with language mirroring 

subdivision f of the North Dakota Century Code. Jamestown Mun. Code Ord. 1525. Ordinance 1409 

and 1525 both pertain to Jamestown Municipal Code § 21-04-06.
4

of one thing implies exclusion of another.” Long, at ¶ 7 (quoting State v. Welch, 

2019 ND 179, ¶ 7, 930 N.W.2d 615). 

[¶14] This Court determined N.D.C.C. § 39-08-01(1)(f) is not ambiguous. Long, 

2020 ND 216, ¶ 15; Casarez, 2021 ND 71, ¶ 10. In Long, the appellant argued 

subdivision f required an individual to be advised of a right to refuse chemical 

testing. Long, at ¶ 4. We concluded subdivision f “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.” Id. at ¶ 11. We also concluded the phrase 

“consistent with the Constitution of the United States and the Constitution of 

North Dakota” in subsection f establishes an acknowledgment that the statute 

and advisory are in compliance with the constitutions. Id. at ¶ 14. The phrase 

requires that any advisory or request for testing comply with the constitutions 

and case law.

[¶15] Nygaard argues subdivision f “fills a hole” in this Court’s jurisprudence 

regarding criminally charging a driver for refusing a chemical test. Subdivision 

f works with the implied consent advisory as an interruption between consent 

and refusal for chemical breath testing. The implied consent advisory 

“establishes that consent to testing is presumed. This presumption is tempered 

by legislative grace allowing a driver to opt out of testing.” Grosgebauer v. 

North Dakota Dep’t of Transp., 2008 ND 75, ¶ 11, 747 N.W.2d 510. 

[¶16] In Casarez, the appellant argued the same Jamestown Ordinance

directly conflicted with N.D.C.C. § 39-08-01 because of subdivision f. 2021 ND 

71, ¶ 6. Because subdivision f is not ambiguous, this Court examined whether 

the Ordinance violated North Dakota law by allowing something the statute 

explicitly prohibited. Id. at ¶ 10. Examining the 2019 legislative amendments 

to DUI laws was pertinent to our decision. Id. at ¶¶ 12-14. In 2019, the 

Legislature removed the statutory exclusionary rule and added subdivision f 

to “explain that proof of refusal, and the evidentiary use of refusal to take a 

chemical test, would be controlled by constitutional standards rather than by 

statutory exclusion.” Id. at ¶ 13. The amendments were consistent with 

changes advocated by members of this Court. Id. (citing Schoon v. North 

Dakota Dep’t of Transp., 2018 ND 210, ¶ 35, 917 N.W.2d 199 (“Even if the 
5

advisory itself is not repealed, I urge the Legislature to consider removing the 

exclusionary rule so that cases can be decided on the traditional grounds of 

whether the implied consent advisory adversely affected an operator’s consent 

to chemical testing.”) (Crothers, J., specially concurring)). 

[¶17] Ultimately, we held subdivision f “explains that claims of coercive 

implied consent advisories must be measured by constitutional standards 

rather than under the former statutory exclusionary rule.” Casarez, 2021 ND 

71, ¶ 14. Here, Nygaard essentially asks us to restore the statutory 

exclusionary rule that was removed in 2019. We decline to require that which 

the Legislature expressly eliminated when it amended N.D.C.C. § 39-08-01. 

III

[¶18] Nygaard contends the legislative history for the 2019 amendments to 

N.D.C.C. § 39-08-01 show Casarez was wrongly decided. This Court does not 

examine legislative history unless a statute is ambiguous. See Casarez, 2021 

ND 71, ¶ 10. “When the wording of a statute is clear and free of all ambiguity, 

the letter of it is not to be disregarded under the pretext of pursuing its spirit.” 

N.D.C.C. § 1-02-05. Because N.D.C.C. § 39-08-01(1)(f) is not ambiguous, we

cannot ignore the plain wording of the statute, even when there is evidence of 

a different meaning contained in some legislative history. We therefore reject 

Nygaard’s argument Casarez was wrongly decided.

IV

[¶19] The plain language of N.D.C.C. § 39-08-01(1)(f) does not require advice

of criminal penalties to drivers before they can be charged with refusing a 

chemical breath test. The criminal judgment is affirmed.

[¶20] Jon J. Jensen, C.J. 

Gerald W. VandeWalle 

Daniel J. Crothers 

Lisa Fair McEvers 

Jerod E. Tufte