concurring specially.
[¶ 26] I agree with the majority opinion, and with Chief Justice VandeWalle’s special concurrence, that the opinion should be read as limited to the facts of. the case.
[¶ 27] I respectfully disagree with Chief Justice VandeWalle’s separate when he states, “it is injudicious to not call the arresting officer as a witness if that officer is available.” I suppose it depends on what is meant by the word “injudicious.” While I agree that the jury may expect the arresting officer to testify, and may draw inferences as to why the officer did not, I would not unequivocally state that not calling the arresting officer “lacks sound discretion” or is “unwise” as the term “injudicious” seems to imply. The State has the burden to prove the essential elements of the crime beyond a reasonable doubt. The State has discretion of which witnesses it may call to meet this burden. Of course, the State takes a risk by not calling what may be considered a critical witness. The “arresting officer” may or may not be a critical witness, as the facts of this case would show. There are a number of circumstances when the “arresting officer” is not the best witness to call to prove tts case. For instance, the arresting officer may not have observed as much as another witness or may not have as much experience testifying as another officer. Wheth*746er to avoid cumulative testimony or merely to present the evidence through an officer who the prosecutor believes is a more persuasive witness, I would not necessarily categorize the State’s decision as “injudicious.”
[¶ 28] I also write because I am concerned this opinion will be read that the essential elements of refusal are those set forth in the jury instructions, which require the State to prove beyond a reasonable doubt, that the officer “had reason to believe the Defendant committed a moving traffic violation and in conjunction with the violation, through the officer’s observations, formulated an opinion that the Defendant’s body contained alcohol.” The State stipulated to the jury instruction, so it is the law of the case. But, I am not convinced that by the mere reference to N.D.C.C. § 39-20-14 (which discusses the circumstances under which a law enforcement officer may request an on-site screening test), within the actual charge for refusal under N.D.C.C. § 39-08-01(l)(e)(3), makes it essential to show the reason for the stop or that in the officer’s opinion the individual’s body contains alcohol.
[¶ 29] An officer would have to follow the requirements under N.D.C.C. § 39-20-14 to legally stop and request an on-site screening test for any driving under the influence charge or the evidence may be suppressed. However, the lawfulness of the stop is not an element of the crime for the jury to consider in a driving under the influence charge in violation of the same subsection of N.D.C.C. § 39-08-01. Granted, the provisions of N.D.C.C. § 39-08-01 that discuss driving under the influence of alcohol or drugs do not make statutory reference to the tests being administered; but, it seems incongruent to require the State to prove the reason for the stop as an essential element for refusal, when it is not required to prove the same for a driving under the influence charge under the same statute.
[¶ 30] DANIEL J. CROTHERS, J., concurs.