State v. Moreno

State of North Dakota, Plaintiff and Appellee
v.
Hector Moreno, Defendant and Appellant

No. 20150158

Appeal from the District Court of Grand Forks County, Northeast Central Judicial District, the Honorable Donald Hager, Judge.
AFFIRMED AND REMANDED.
Per Curiam.
Brittney A. Blake, Assistant State's Attorney, Grand Forks County State's Attorney's Office, 124 South Fourth Street, P.O. Box 5607, Grand Forks, N.D. 58206-5607, for plaintiff and appellee.
David N. Ogren, Grand Forks Public Defender Office, 405 Bruce Avenue, Suite 101, Grand Forks, N.D. 58201, for defendant and appellant.

State v. MorenoNo. 20150158

Per Curiam.

[¶1] Hector Moreno appeals after a judge found him guilty of refusal to submit to chemical testing - 4th offense or more. He argues the evidence was insufficient to sustain the district court's guilty verdict, because the arresting officer did not have probable cause to believe he was in actual physical control of his vehicle. We summarily affirm under N.D.R.App.P. 35.1(a)(3) and (7), concluding there is sufficient evidence in the record to sustain the conviction. See Deeth v. Director, North Dakota Dep't of Transp., 2014 ND 232, ¶ 13, 857 N.W.2d 86 (when a defendant is charged with refusal to submit to testing, it is not necessary that actual physical control be proven, only that the facts establish probable cause to believe the offense has been committed).

[¶2] The criminal judgment incorrectly refers to N.D.C.C. § 39-08-01(1)(e)(3), refusal to submit to an onsite screening test, as the basis for the conviction rather than N.D.C.C. § 39-08-01(1)(e)(2), refusal to submit to a chemical test, as charged in the amended information. We remand for the district court to correct the clerical error in the judgment to reflect the conviction under N.D.C.C. § 39-08-01(1)(e)(2).

[¶3] Gerald W. VandeWalle, C.J.
Dale V. Sandstrom
Daniel J. Crothers
Lisa Fair McEvers
Carol Ronning Kapsner