Q&A with Pat Merriman

TL asks Q- “Why did you dismiss a felony alcohol-influenced fatality case?”

Pat Merriman



A- I am actually paraphrasing the question that was posed by an attorney. So, the rules are clear that, ethically, I cannot directly comment on a pending case. But, as a general rule, the public needs to understand the fundamental differences between an arresting officer’s CHARGING decision and, ultimately, the State’s Attorney’s mandate in PROSECUTING a defendant. First, at the scene of any crash/death, absolute chaos has to be converted into some type of control by the first officer on the scene. After one of these incidents, it is a full-blown, 4-alarm mess and precious time is elapsing but, there is a rigid protocol that each investigating agency must follow.

The initial officer on the scene is often presented with a nightmare that will haunt him/her for years. Regardless, the priority of ALL first responders is securing the crime scene with minimal contamination and disturbance of physical evidence; but, also, insuring the safety and physical well-being of officers and other individuals in and around the crime scene. And, of course, at an alleged DUI-related traffic accident, that always includes the emergency medical care of everyone at the scene including the alleged intoxicated driver. And, coordinating that emergency care, while maintaining non-contamination of the crime scene, is no easy task and it TAKES TIME.

Second, please recall that this is an “Emergency Transport” situation. If anyone is in need of medical attention, coordination of their stabilization and transportation is a top priority and that precludes, questioning or other interrogation of even an alleged offender until they are out of danger. Again, MORE TIME elapses. So, whereas, isolated statements, odors or other seemingly incriminating words/actions may occur during this phase of the investigation, recall that this is all happening in a high-stress environment that is weeks later going to be reviewed with a fine toothed comb with only one Cardinal Rule–the protection of the accused’s Constitutional rights; with arm-chair, Monday-morning quarterbacking being the rule not the exception. Third, as the investigation progresses amid this chaos, questions about North Dakota’s Implied Consent Law (in the DUI-related genre) becomes an issue. Often, people think that “Implied Consent” means that you can forcibly take blood from an offender even if he/she refuses to cooperate during the investigation because they “impliedly” consented by driving a motor vehicle in North Dakota. And, nothing could be farther from the truth.

I really don’t want to give a primer to drunks who want a way to thwart a DUI fatality case but, suffice it to say that Implied Consent does not always mean “compelled consent” in North Dakota. And, only if it DOES apply and blood is drawn by a competent hospital person (authorized by the State Toxicologist), a later laboratory analysis (if the blood was drawn within 2 hours of the driving at issue) is virtually conclusive on the fact that a driver was “under the influence” of drugs/alcohol in violation of 39-08-01, NDCC. However, unfortunately, if the Implied Consent law fails to apply, the only potential charge may be a Refusal to Submit to a Chemical Test in violation of 39-08-01.2, NDCC– only a class B misdemeanor.

In North Dakota, even if someone died in a DUI-related crash, if Implied Consent does not apply, and a driver refuses to cooperate with authorities, the state is forced to petition a court for a search warrant to draw blood and, the only crime committed (at that point) is the same level offense as reckless driving, DUI or DUS…that’s it! The solution? I have never heard anyone who has a solution. And, even if the North Dakota Legislature did amend the Century Code in this genre, it would still have to make a refusal (under these circumstances) a severe enough crime that suspects would cooperate with authorities; and, the US Supreme Court would have to agree with their decision. I can assure you this is a hotly contested discussion even among the members of the North Dakota States Attorneys Association. Believe it or not, back East, some don’t think that DUI should be a crime. Enough said.

Fourth, obtaining a search warrant is time consuming. Frankly, there is no way that I can envision (with over 30 years of experience) that it could ever happen within the 2-hour period established under the NDCC for obtaining body fluids. And, under appropriate circumstances, up to 6 hours is not unreasonable to prepare, obtain and execute a search warrant AND get body fluids for a BAC test. Fifth, the other “indicators” of impairment associated with drunken driving are simply not present in DUI fatality cases where everyone (including the alleged offender) is injured in the accident.

At the outset, an “odor” of intoxicants (regardless of the strength of the odor), under every state’s DUI laws, proves nothing other than someone’s breath stank. Mouthwash, candy, food and even the consumption of an alcoholic beverage, in and of themselves, proves nothing other than their “ingestion” not intoxication or “impairment”. In fact, the other indicators usually found with DUI drivers-nystagmus, slurred speech, poor balance, impaired thinking process, dilated/constricted pupils and, impaired limbic brain function are “accounted for” in an accident scenario because of head, body or psychological trauma sustained in the accident itself. Normally, a drunk driver is stopped BEFORE he/she hurts someone. There is no logical explanation for these phenomenon if there was no crash. In an DUI accident, there is a logical explanation. Hence, the critical importance of BAC testing because of the state’s “beyond a reasonable doubt” standard at trial.

Sixth, people fundamentally misunderstand the road-side or “portable” breath test which is absolutely NOT admissible in a North Dakota court. This roadside test only corroborates “probable cause” to arrest. It does not establish the legal standard of “under the influence” and cannot be introduced by the state (in court), under the NDCC, for that proposition at all. And, where there are injuries, first responders would be grossly negligent in performing such a test in lieu of stabilizing and transporting an injured party–even an impaired driver. Finally, North Dakota joins a majority of other states in allowing “officer charging” by citation. Simply put, if an arresting officer has “probable cause”, they can arrest when it is more likely than not that a particular crime has been committed and this defendant was somehow involved. And, that is the initial standard of proof for ARRESTING a suspect and initially CHARGING them.

After that arrest, other factors inure over the next several weeks (sometimes, up to 6 months after the arrest). North Dakota is very strict on these guidelines. It’s that Due Process provision of the federal and state constitutions. Again, the focus is on the defendant’s rights not those of the people of the state of North Dakota. Often, lab tests come back and conclusively establish that an offender (no matter how he/she smelled or staggered at the scene) had a de minimus amount of alcohol in their system or none at all several hours later. In North Dakota, you are only presumed to be “under the influence” or “impaired” if your BAC is at least .08% or more. If the lab test shows less, the state must have very strong evidence of impairment or the offender is NOT DUI.

In fact, in cases where blood/body fluids were not drawn within 2 hours of driving, the lab expert can only do an extrapolation (educated guess) if they can say “with a reasonable degree of scientific certainty” that the BAC within that 2-hour period was at .08%+. If not, the case is officially DOA at that point. And, the burden for the States Attorney is NOT probable cause to proceed but, rather, “a reasonable belief that a conviction can be obtained beyond a reasonable doubt.” Some opine, that this burden should be lowered. But, again, that is not the law and, no prosecutor who takes their oath seriously can aspire to that public lynching. One can either prove one’s case beyond a reasonable doubt, or, one cannot. And, the fact that a victim has died, albeit a horrible event, is not a wrong that can be remedied by violating the alleged DUI driver’s rights.

So, absent the foregoing evidence or, some other evidence of impaired driving, sometimes, the only thing that can be done in North Dakota is reducing the alleged offense to a class B misdemeanor reckless driving–the same class crime as other similar driving offenses with an 8 point administrative violation. To some, certainly not “justice” but, it most certainly is the law. I hope this answered TL’s question within the bounds of professional conduct.

Thanks for your questions/comments!

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