State v. Bernsdorf

20100017 State of North Dakota, Plaintiff and Appellant
v.
Justin Frederick Bernsdorf, Defendant and Appellee

Appeal from: District Court, Northwest Judicial District, Ward County
Judge Richard L. Hagar
Nature of Action: Dui/Dus
Counsel:
Appellant: Bradford Alan Peterson , State's Attorney
Appellee: Robert Wade Martin
Term: 06/2010   Argument: 06/14/2010  1:30pm
ND cite: 2010 ND 123
NW cite: 784 N.W.2d 126

Listen to recording of oral argument in MP3 format

Issues: Appellant's Statement of the Issues:
Whether evidence of a person's act of driving should be deemed by the District Court to be relevant and generally admissible in the administration of actual physical control causes of action under N.D.C.C.  39-08-01, which states in pertinent part that a person may not drive or be in actual physical control of a vehicle while under the influence of intoxicating liquor.

Appellee's Statement of the Issues:
[1] What remedy is sought by the State and whether the State may appeal from a Judgment of Acquittal?
[2] Whether the State's attempt to characterize an appeal of a Judgment of Acquittal as a request for supervisory writ after filing the Notice of Appeal, which Notice further mischaracterized the Judgment of Acquittal as an order of dismissal, constitutes a proper request for this Court to exercise original jurisdiction under the circumstances presented?
[3] Whether the Double Jeopardy Clause of the Fifth Amendment of the Constitution of the United States, made binding upon this Court by the operation of the Fourteenth Amendment to the Constitution of the United States, as well as Article I, Section 12 of the Constitution of the State of North Dakota, operate to bar the relief requested-if any-by the State?
[4] Whether the relief requested by the State-if any-would operate as an impermissible collateral attack on the Judgment of Acquittal?
[5] Whether the relief requested by the State is, in fact, an attempt to solicit an impermissible advisory opinion from this Court?
[6] Whether the State's appeal of the Judgment of Acquittal fails for lack of jurisdiction?

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Docket entries:
101/15/2010 NOTICE OF APPEAL: 01/13/2010
201/15/2010 ORDER FOR TRANSCRIPT: 01/13/2010
301/20/2010 Acknowledgment of OTR & RETENTION OF RECORD ON APPEAL: 03/04/2010
402/02/2010 TRANSCRIPT DATED December 16, 2009 & C.O.S.
502/02/2010 DISK - tra (12/16/09) (e-mailed)
602/05/2010 RECORD ON APPEAL
703/02/2010 Letter from Carl Flagstad. He has not been retained for the appeal.
803/08/2010 MOT. EXT/TIME APPELLANT BRIEF
903/09/2010 ACTION BY CLERK (MAT). Granted: 03/29/2010
1003/10/2010 MOT. EXT/TIME APPELLANT BRIEF
1103/10/2010 ACTION BY CLERK (MAT). Granted: 04/13/2010
1203/15/2010 Notice of Appearance of Robert W. Martin for Appellee Justin Bernsdorf
1303/17/2010 Supplemental Clerk's Certificate of Record dated March 12, 2010 (Entry Nos. 25-32).
1404/08/2010 APPELLANT BRIEF
1504/08/2010 APPELLANT APPENDIX
1604/09/2010 DISK-ATB (CD-ROM)
1705/03/2010 APPELLEE BRIEF (e-filed)
1805/03/2010 E-FILED BRIEF (AEB)
1905/05/2010 Received 7 copies of AEB from CSD
2006/06/2010 Received Affidavit of Service of State's Brief on Judge Hagar
2105/07/2010 AEB surcharge fee paid 5-7-10 through inter-departmental billing
2205/18/2010 NOTICE OF ORAL ARGUMENT SENT
2306/11/2010 Citation of Supplemental Authority (State v. Lee, 2010 ND 88) under Rule 28(k)
2406/14/2010 APPEARANCES: Bradford A. Peterson, Asst. State's Attny.; Robert W. Martin
2506/14/2010 ARGUED: Peterson; Martin
2606/14/2010 ORAL ARGUMENT WEBCAST
2706/30/2010 DISPOSITION: DISMISSED
2806/30/2010 UNANIMOUS OPINION: Crothers, Daniel John
2907/01/2010 Judgment Sent to Parties
3007/29/2010 MANDATE
3108/01/2010 RECEIPT SIGNED BY DISTRICT COURT CLERK'S OFFICE

Generated from Supreme Court Docket on 08/29/2014