State v. Hawkins

McEvers, Justice,

dissenting.

[¶ 13] I respectfully dissent. Despite the deference we grant to the district court’s findings, I believe the district court’s findings are contrary to the manifest weight of the evidence. To agree with the district court here would mean that every person who initially refused an on-site screening test and was placed under arrest could not later voluntarily agree to take a blood test. Other than the arrest itself, and placing Mr. Hawkins into the squad car, there is no evidence in the record of coercion by law enforcement. The only testimony provided by the deputy was there was no intent to coerce Mr. Hawkins. The district court speculates, “[i]n fact, it is reasonable to the court that the very reason Mr. Hawkins changed his mind about testing was because his previous refusal resulted in immediate arrest.” However, we have no idea why Mr. Hawkins changed his mind, because he did not testify.

[¶ 14] In State v. Schmidt, this Court reiterated the considerations for determining whether consent is voluntary, stating:

Consent is voluntary when it is the product of a free and unconstrained choice and not the product of duress or coercion, and to decide whether consent is voluntary we consider:
“(1) the characteristics and condition of the accused at the time of the consent, including age, sex, race, education level, physical or mental condi*452tion, and prior experience with police; and (2) the details of the setting in which the consent was obtained, including the duration and conditions of detention, police attitude toward the defendant, and the diverse pressures that sap the accused’s powers of resistance or self control.”

2016 ND 187, ¶ 24, 885 N.W.2d 65 (quoting State v. Torkelsen, 2008 ND 141, ¶ 21, 752 N.W.2d 640).

[¶ 15] Although the district court cited to Schmidt, in discussing how to analyze vol-untariness of consent, there is very little analysis provided. Law enforcement testified that Mr. Hawkins consented. In fact, the deputy testified that Mr. Hawkins stated he wanted to take the test before the deputy could even complete the implied consent advisory. There is no finding that law enforcement was not credible. Based on the totality of the circumstances presented to the district court, I believe the district court’s findings are contrary to the manifest weight of the evidence. I would reverse.

[¶ 16] Lisa Fair McEvers Gerald W. VandeWalle, C.J.