North Dakota v. Kolstad
Annotate this CaseIn 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 seeking 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. Upon learning that Waltz’s body camera footage was successfully uploaded to UND servers, Kolstad’s counsel moved to dismiss the case because the State did not provide any body camera footage in discovery as requested. The district court ultimately dismissed the refusal to submit to a chemical breath test charge as a sanction for failing to provide the body camera footage. The State appealed, arguing the alleged discovery violation did 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 argued the district court’s order dismissing the refusal charge was not appealable, and if it was, the court did not abuse its discretion in dismissing the charge. The North Dakota Supreme Court concluded there was nothing in the record to indicate the district court adequately considered an alternative or less severe sanction to dismissal, and by not considering a less severe sanction, the trial court erred. The district court’s order dismissing the refusal charge was reversed, and the matter remanded for further proceedings.
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