State v . Isom , 2018 ND 60 , 907 N . W . 2d 340
The defendant was convicted of the crime of aggravated assault – domestic violence and appealed . One of the defendant ’ s appeal arguments was the District Court imposed an illegal sentence .
The crime the defendant was convicted of carried a maximum penalty of three years ’ imprisonment . The District Court , however , sentenced the defendant to five years with the North Dakota State Department of Corrections , requiring the defendant to serve two and one-half years of that term and staying the other two and one-half years for a period of five years ’ supervised probation .
On appeal , the Supreme Court agreed with the defendant that the District Court imposed an illegal sentence of five years supervised probation because the maximum imprisonment for the crime itself was only three . The Supreme Court reversed the Judgment on that issue and remanded the case for resentencing consistent with the three-year maximum imprisonment penalty under the applicable statute .
Moreover , the Supreme Court held that jeopardy did not attach in the case until after the finally-selected jury was sworn in . At trial , a jury was initially selected , but then one juror was removed and replaced with another . All this happened before the final jury was sworn in . Thus , according to the Supreme Court , jeopardy did not attach until after the replacement juror was seated and confirmed , and the entire panel was then sworn in .
City of Bismarck v . Brekhus , 2018 ND 84
The City of Bismarck appealed a District Court Order granting the defendant ’ s motion to suppress evidence . One night in December 2016 , a Bismarck police officer observed a vehicle failing to negotiate a turn and sliding into a snow bank . The officer believed the driver was driving at an unsafe speed for the road conditions .
The officer turned around , followed the vehicle , and activated his overhead lights , but the driver did not stop . The officer activated his siren and continued to follow the vehicle , yet the driver continued to drive on and flee the patrol car .
The driver eventually turned into a parking lot and entered a garage that was not attached to the defendant ’ s residence . While the door remained open , the officer entered the garage . With the driver ’ s permission , the officer searched her vehicle to retrieve her vehicle registration and proof of insurance . While doing so , the officer observed in plain view a glass smoking device in the center console , which was warm to the touch and contained a substance he believed to be marijuana . The driver was placed under arrest for , among other things , possession of marijuana and drug paraphernalia .
The defendant moved to suppress the evidence , which was granted by the District Court .
On appeal , the Supreme Court reversed , holding the police officer ’ s warrantless entry into the garage and warrantless search and seizure of the contraband in the car were proper under the “ hot pursuit ” doctrine .
Accordingly , the Supreme Court reversed the District Court Order suppressing the evidence and remanded the case back to the District Court for further proceedings .
City of Bismarck v . Weisz , 2018 ND 49 , 907 N . W . 2d 409
The defendant was convicted for being in actual physical control of a vehicle while under the influence of intoxicating liquor .
City of Bismarck police officers were called to the scene of an accident . Upon arrival , they saw a vehicle that had crashed into a utility box , in the ditch , with fresh tire tracks in the snow , leading off the road . The officers never saw anyone in the vehicle , but saw footprints leading away from the driver ’ s side of the vehicle . The vehicle ’ s registration identified the defendant as the owner . The defendant ’ s address was near the location of the vehicle .
While investigating the matter , and still at the scene , the officers saw the defendant walking down toward the vehicle , stumbling and tripping over himself as he approached the vehicle . He appeared drunk . He apparently was .
The defendant was convicted of the crime of actual physical control , upon a conditional plea of guilty , after his motion to suppress evidence was denied .
On appeal , because of the facts stated above , as well as others in the opinion , the Supreme Court held there was sufficient reasonable cause to arrest and convict the defendant even though he was never actually seen inside of or operating his vehicle . The criminal judgment was affirmed .
A Note
While not a Supreme Court decision , a recent action of the Supreme Court is of great importance and significance to the practicing bar . Effective March 1 , Rule 6 ( e ), N . D . R . Civ . P ., was amended to remove service by electronic means from the modes of service of pleadings and other documents that allow three additional days to act after that form of service . Those of us who often relied upon these three extra days to serve responsive pleadings and other documents now have to live by a slightly altered clock . Internal docketing and calendaring systems and practices may need to be adjusted accordingly .
HEADED TO STURGIS ? JOIN US FOR A RIDE OR A CLE !
Street Legal MC started 25 years ago for motorcyclists working in the legal field . Our members include lawyers , judges , law school deans , law students , paralegals , legal secretaries , court reporters , and the like . From solo practitioners to large firm partners ; corporate counsel to government lawyers .
Contact us at http :// streetlegal-mn . org for more information ! Or , find us on Facebook !
SPRING 2018 19