SBAND Seminar Materials DUI Case Law Update Materials | Page 9

1) State v. Pena Garcia, 2012 ND 11, 812 N.W.2d 328
Prosecutor:
Defense:

Carmell Mattison and Jennifer Albaugh (third year law student)
David Ogren

Facts:
Two Grand Forks Deputies were patrolling the city of Larimore at 3 AM
when they found Garcia passed out and laying face down on the driver’s seat of his
pickup truck with his legs outside of the vehicle. The vehicle was running with its lights
on. Garcia’s girlfriend testified she drove him to their apartment and left him in the
vehicle but she had taken the keys. The two officers testified they shut the vehicle off but
could not recall what happened to the keys. Garcia’s blood alcohol level was .198. A jury
trial was held and defense counsel argued the State was required to establish Garcia was
in a position to manipulate the vehicle’s controls and cause it to move and without the
keys the vehicle goes nowhere. On rebuttal the State referred to North Dakota case law
does not require the State to prove beyond a reasonable doubt the location of the keys.
Procedure: Garcia objected to statements of the prosecutor and requested a mistrial
for improperly reading case law to the jury. The district court sustained the objection but
denied the mistrial. ND Supreme Court AFFIRMED.
Holding:
It was unnecessary for the Court to determine whether the comments by
the prosecutor were misconduct or were invited error because the court’s instructions
cured any error and any possible prejudice. Claims of improper argument are generally
not grounds for reversal because it is presumed the jury will follow the trial court's
admonition and disregard improper statements.
V.

Administrative Hearing Issues

1) Yellowbird v. ND DOT, 2013 ND 131
Prosecutor:
Defense:

Douglas Anderson
Chad McCabe

Facts:
YellowBird was arrested after being stopped for a traffic violation. During
the stop, YellowBird refused the on-site breath test. He later refused to take the
Intoxilyzer test. The officer who requested the screening device was a recruit officer with
authority to stop and arrest and was accompanied by her field training officer.
Procedure: ND DOT suspended YellowBird’s driving privileges and he appealed
arguing the officer was not certified as a chemical test operator therefore he could not
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