per se rule in North Dakota

2013“An officer must set forth some facts for believing the evidence will be destroyed other than its mere existence.” Fields , at ¶ 10; see State v. Herrick, 1997 ND 155, ¶ 21 , 567 N.W.2d 336 (overruling a per-se rule allowing no-knock warrants in drug cases).

2013“An officer must set forth some facts for believing the evidence will be destroyed other than its mere existence.” Fields , at ¶ 10; see State v. Herrick, 1997 ND 155, ¶ 21 , 567 N.W.2d 336 (overruling a per-se rule allowing no-knock warrants in drug cases).

2012Section 39-08-01(1)0)), N.D.C.C, provides a person can be convicted of driving under the influence of intoxicating liquor regardless of the driver’s blood alcohol level if the State proves the person drove a motor vehicle on a public way lacking “the clearness of intellect and control of himself that he would otherwise have.” State v. Knowels, 2003 ND 180, ¶ 8 , 671 N.W.2d 816 (quoting State v. Whitney, 377 N.W.2d 132, 133 (N.D.1985)).

2012Section 39-08-01(1)(b), N.D.C.C., provides a person can be convicted of driving under the influence of intoxicating liquor regardless of the driver’s blood alcohol level if the State proves the person drove a motor vehicle on a public way lacking “the clearness of intellect and control of himself that he would otherwise have.” State v. Knowels , 2003 ND 180, ¶ 8 , 671 N.W.2d 816 (quoting State v. Whitney , 377 N.W.2d 132, 133 (N.D. 1985)).

1995Although evidence from a blood-alcohol test administered more than two hours after driving is not admissible to prove DUI under the per se rule in section 39-08-01(1)(a), it "may be sufficient evidence for the trier of fact to convict a defendant for violating § 39-08-01(b), (c) or (d), N.D.C.C." City of Grand Forks v. Soli, 479 N.W.2d 872, 875 (N.D. 1992).

1995Although evidence from a blood-alcohol test administered more than two hours after driving is not admissible to prove DUI under the per se rule in section 39-08-01(l)(a), it “may be sufficient evidence for the trier of fact to convict a defendant for violating § 39-08-01(b), (c) or (d), N.D.C.C.” City of Grand Forks v. Soli, 479 N.W.2d 872, 875 (N.D.1992).

2007In Richards v. Wisconsin, 520 U.S. 385, 394-95 , 117 S.Ct. 1416 , 137 L.Ed.2d 615 (1997), the United States Supreme Court denounced a per se rule for no-knock search warrants in drug cases and, following the logic of Richards , our Court, in Fields, 2005 ND 15 , 691 N.W.2d 233 , denounced a per se rule for nighttime search warrants in drug cases. [¶ 57] The majority, at ¶ 27, makes the unfounded and factually unsupported assumption that “in order for law enforcement to catch Roth in the process of manufacturing methamphetamine” the search must be conducted at night.

2007In Richards v. Wisconsin, 520 U.S. 385, 394-95 , 117 S.Ct. 1416 , 137 L.Ed.2d 615 (1997), the United States Supreme Court denounced a per se rule for no-knock search warrants in drug cases and, following the logic of Richards , our Court, in Fields, 2005 ND 15 , 691 N.W.2d 233 , denounced a per se rule for nighttime search warrants in drug cases. [¶ 57] The majority, at ¶ 27, makes the unfounded and factually unsupported assumption that “in order for law enforcement to catch Roth in the process of manufacturing methamphetamine” the search must be conducted at night.

1999In 1992, in State v. Knudson, 499 N.W.2d 872 (N.D.1993), this Court again discussed drugs and no-knock warrants stating, “[a] no-knock warrant in drug cases is available under this statute, because we have taken judicial notice that those in possession of controlled substances ordinarily are on the alert to destroy the typically easily disposable evidence quickly at the first sign of a law enforcement officer’s presence.” Id. at 876 . [¶ 18] As we noted in Herrick I, these cases effectively constituted a per se rule in North Dakota that the suspected presence of drugs justified a no-knock warr

1999See id. at ¶ 21 (“our prior rhetoric approve[d] a per-se rule in drug cases justifying the issuance of no-knock warrants”); State v. Knudson, 499 N.W.2d 872, 876 (N.D.1993) (applying our per-se rule); State v. Loucks, 209 N.W.2d 772, 777-78 (N.D.1973) (adopting a per-se rule which allowed courts to “take judicial notice ... that drugs may be easily disposed of’).

2003State v. Whitney, 377 N.W.2d 132, 133 (N.D.1985) (citing State v. Kimball, 361 N.W.2d 601 (N.D.1985); State v. Gawryluk, 351 N.W.2d 94 (N.D.1984); State v. Kisse, 351 N.W.2d 97 (1984)). “[T]he crime created by subsection (l)(b) is driving while under the influence of intoxicating liquor, regardless of the driver’s blood alcohol concentration.” State v. Schwab, 2003 ND 119, ¶ 8 , 665 N.W.2d 52 (citing City of Minot v. Bjelland, 452 N.W.2d 348, 350 (N.D.1990)).

1994City of Minot v. Bjelland, 452 N.W.2d 348, 349 (N.D.1990); State v. Keegan, 493 N.W.2d 219, 220 (N.D.Ct.App.1992).

1998Still, most courts have refused to construe Mathis as creating a per se rule requiring Miranda warnings before any investigatory questioning of an inmate inside a prison. [¶ 12] One of the leading cases in this area of the law declared a per se rule “would not only be inconsistent with Miranda but would torture it to the illogical position of providing greater protection to a prisoner than to his nonimprisoned counterpart.” Cervantes v. Walker, 589 F.2d 424, 427 (9th Cir.1978).

1998Still, most courts have refused to construe Mathis as creating a per se rule requiring Miranda warnings before any investigatory questioning of an inmate inside a prison. [¶12] One of the leading cases in this area of the law declared a per se rule “would not only be inconsistent with Miranda but would torture it to the illogical position of providing greater protection to a prisoner than to his nonimprisoned counterpart.” Cervantes v. Walker , 589 F.2d 424, 427 (9th Cir. 1978).

1997See City of Grand Forks v. Risser, 512 N.W.2d 462, 465 (N.D.1994) (stating a test performed 2 hours and 39 minutes after the defendant operated a motor vehicle still retained probative value as to the defendant’s intoxicated state).

1997See City of Grand Forks v. Risser , 512 N.W.2d 462, 465 (N.D. 1994) (stating a test performed 2 hours and 39 minutes after the defendant operated a motor vehicle still retained probative value as to the defendant's intoxicated state).

1997State v. Steinmetz, 552 N.W.2d 358, 361 (N.D.1996); City of Grand Forks v. Soli, 479 N.W.2d 872, 874 (N.D.1992).

1997State v. Steinmetz , 552 N.W.2d 358, 361 (N.D. 1996); City of Grand Forks v. Soli , 479 N.W.2d 872, 874 (N.D. 1992).

2014In Fields this Court held, “To the extent our prior decisions approved a per-se rule justifying the issuance of nighttime warrants in drug cases, they are overruled.” Fields , 2005 ND 15, ¶ 10 , 691 N.W.2d 233 . [¶12] In the affidavit in support of the search warrant application, Detective Witte included a special request for nighttime service authorization “to allow officers the ability to get closer to the residence before being detected under the cover of darkness.” The affidavit stated, “entry of law enforcement in this manner will be safer to those inside as well as the law enforcement of

2014In Fields this Court held, “To the extent our prior decisions approved a per-se rule justifying the issuance of nighttime warrants in drug cases, they are overruled.” Fields , 2005 ND 15, ¶ 10 , 691 N.W.2d 233 . [¶12] In the affidavit in support of the search warrant application, Detective Witte included a special request for nighttime service authorization “to allow officers the ability to get closer to the residence before being detected under the cover of darkness.” The affidavit stated, “entry of law enforcement in this manner will be safer to those inside as well as the law enforcement of

2025See, e.g., State v. Osier, 1997 ND 170, ¶ 4 , 569 N.W.2d 441 (noting that Rule 404(b) “acknowledges the inherent prejudicial effect prior bad act evidence may have on the trier of fact”); State v. Shaw, 2016 ND 171, ¶ 7 , 883 N.W.2d 889 (same). [¶15] Our past comments about the prejudice inherent in Rule 404(b) evidence have been made to explain the importance of conducting the obligatory three- step analysis required by Rule 404(b) and—even when the evidence meets that test—the need to perform Rule 403’s balancing test to determine if the evidence should still be excluded because of the dange

2025See, e.g., State v. Osier, 1997 ND 170, ¶ 4 , 569 N.W.2d 441 (noting that Rule 404(b) “acknowledges the inherent prejudicial effect prior bad act evidence may have on the trier of fact”); State v. Shaw, 2016 ND 171, ¶ 7 , 883 N.W.2d 889 (same). [¶15] Our past comments about the prejudice inherent in Rule 404(b) evidence have been made to explain the importance of conducting the obligatory three- step analysis required by Rule 404(b) and—even when the evidence meets that test—the need to perform Rule 403’s balancing test to determine if the evidence should still be excluded because of the dange

2018See Treesh v. Bagley , 612 F.3d 424 , 431 (6th Cir. 2010) ; United States v. Andaverde , 64 F.3d 1305 , 1312 (9th Cir. 1995) ; United States v. Thieret , 791 F.2d 543 , 547-48 (7th Cir. 1986).

2014In a criminal context we have said “when testimonial statements are at issue, the constitutional right to confrontation cannot be superseded by reliability and trustworthiness.” Blue, 2006 ND 134, ¶21 , 717 N.W.2d 558 ; see also Crawford v. Washington, 541 U.S. 36, 68 , 124 S.Ct. 1354 , 158 L.Ed.2d 177 (2004).

2014In a criminal context we have said “when testimonial statements are at issue, the constitutional right to confrontation cannot be superseded by reliability and trustworthiness.” Blue, 2006 ND 134, ¶21 , 717 N.W.2d 558 ; see also Crawford v. Washington, 541 U.S. 36, 68 , 124 S.Ct. 1354 , 158 L.Ed.2d 177 (2004).

2009Id. at 613.