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City of West Fargo v. Mandie Le Ekstrom
Case Number: 2020 ND 37
Judge: Lisa Fair McEvers
Court: IN THE SUPREME COURT
STATE OF NORTH DAKOTA
Plaintiff's Attorney: Stephen R. Hanson II (argued), Assistant City Attorney, and Kelsey Stock (on
brief), third-year law student, under the Rule on Limited Practice of Law by
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In February 2018, the City of West Fargo charged Ekstrom in municipal
court with driving under the influence after a chemical breath test indicated
she was driving with an alcohol concentration in excess of the legal limit. She
requested the case be transferred to district court for a jury trial. During the
first trial in October 2018, Ekstrom moved for a mistrial after the City’s police
officer testified to the chemical breath test results before the chemical test
results had been offered into evidence. The court reserved its ruling, allowing
the City to proceed and offer the chemical test result into evidence.
[¶3] When the City offered the chemical breath test, however, Ekstrom
objected arguing the City failed to offer evidence that the Intoxilyzer 8000 used
in her case was installed by a field inspector under the approved method for
operating the machine. See N.D.C.C. § 39-20-07(5); Ell v. Dir., Dep’t of Transp.,
2016 ND 164, 883 N.W.2d 464. The court sustained her objection and granted
her mistrial motion based on the City’s failure to provide proper foundation for
the test result’s admission.
[¶4] The district court gave the City ten days to schedule and notice a new
trial date. Ekstrom objected on double jeopardy grounds and moved to dismiss
the charge. She subsequently filed her motion to dismiss the case, arguing
further prosecution would violate her double jeopardy rights. The City resisted
the motion. After an October 29, 2018, hearing, the district court denied her
motion to dismiss. This Court also denied her petition for a supervisory writ,
see Ekstrom v. Bailey, et al., No. 20180438. The district court held a second
trial in February 2019.
[¶5] At the second trial the district court denied Ekstrom’s motions in limine
and allowed the City to introduce additional evidence and expert witness
testimony not offered during the first trial. With proper foundation the court
admitted the chemical breath test result into evidence.
[¶6] Ekstrom objected to the elements in the jury instructions on grounds the
City’s complaint only charged her with driving under the influence and did not
charge her with aggravated DUI. She further argued the jury was required to
make a finding regarding whether her alcohol concentration exceeded .16. The
court overruled her objection, concluding the .16 finding was not an essential
element of aggravated DUI.
[¶7] The jury found Ekstrom guilty of driving under the influence. In
sentencing her, the district court elevated her conviction from DUI to
aggravated DUI. A criminal judgment was subsequently entered.
[¶8] Ekstrom argues the district court erred in denying her motion to dismiss
on state and federal constitutional double jeopardy grounds.
[¶9] The double jeopardy provisions of the federal and state constitutions and
state law prohibit successive prosecutions and punishments for the same
criminal offense. U.S. Const. amend. V; N.D. Const. art. I, § 12; N.D.C.C. § 29-
01-07. In a jury trial, jeopardy attaches when the jury is empaneled and sworn.
See Day v. Haskell, 2011 ND 125, ¶ 8, 799 N.W.2d 355. However, double
jeopardy does not always prohibit retrial when the first trial has terminated
before a verdict is rendered. See id. at ¶ 9; State v. Voigt, 2007 ND 100, ¶ 12,
734 N.W.2d 787. “Each case in which a double jeopardy violation is asserted
must turn upon its own facts.” Id. at ¶ 13. A mistrial that is declared with the
defendant’s consent, such as when the defendant moves for a mistrial without
having been goaded into doing so by misconduct attributable to the prosecutor,
generally does not bar a later prosecution. Voigt, at ¶ 18.
[¶10] In Oregon v. Kennedy, 456 U.S. 667, 675-76 (1982), the Supreme Court
Prosecutorial conduct that might be viewed as harassment
or overreaching, even if sufficient to justify a mistrial on
defendant’s motion, therefore, does not bar retrial absent intent on
the part of the prosecutor to subvert the protections afforded by
the Double Jeopardy Clause. A defendant’s motion for a mistrial
constitutes “a deliberate election on his part to forgo his valued
right to have his guilt or innocence determined before the first trier
of fact.” United States v. Scott, 437 U.S. 82, 93, 98 S. Ct. 2187,
2195, 57 L.Ed.2d 65 (1978). Where prosecutorial error even of a
degree sufficient to warrant a mistrial has occurred, “[t]he
important consideration, for purposes of the Double Jeopardy
Clause, is that the defendant retain primary control over the
course to be followed in the event of such error.” United States v.
Dinitz, supra, 424 U.S., at 609, 96 S. Ct., at 1080. Only where the
governmental conduct in question is intended to “goad” the
defendant into moving for a mistrial may a defendant raise the bar
of double jeopardy to a second trial after having succeeded in
aborting the first on his own motion.
“[W]e do hold that the circumstances under which such a defendant may invoke
the bar of double jeopardy in a second effort to try him are limited to those
cases in which the conduct giving rise to the successful motion for a mistrial
was intended to provoke the defendant into moving for a mistrial.” Kennedy,
[¶11] Ekstrom argues that double jeopardy barred the retrial in her case.
Although she moved for the mistrial, she asserts the City’s acts and omissions
bar her retrial. She contends double jeopardy protects a defendant from a
second prosecution when prosecutorial overreach provokes a mistrial and
affords the prosecution a more favorable opportunity to convict a defendant.
See Kennedy, 456 U.S. at 674. Ekstrom also asserts a broader understanding
of what constitutes prosecutorial overreach or harassment, relying in part on
Downum v. United States, 372 U.S. 734, 736 (1963), and U.S. v. Dinitz, 424
U.S. 600, 611 (1976). We note however, one court has said that to the extent
these cases invoke a broader “harassment” standard, they were overruled by
Kennedy. See State v. Butler, 810 A.2d 791, 796-97 (Conn. 2002).
[¶12] Despite the fact that Ekstrom made the motion for mistrial, she argues
the City not only caused the mistrial, but also acquiesced to the motion by not
attempting to cure the foundational deficiency or objecting to the motion. She
contends the City deliberately asked the broad question of the police officer,
for which a highly prejudicial answer was foreseeable, i.e., the inadmissible
chemical test result. She argues this Court should not adopt the Kennedy
standard and that, even if adopted, Kennedy and subsequent law does not
preclude dismissal in this case. She essentially asserts the City’s conduct in
asking the general question of the police officer goaded or provoked her to move
the district court for a mistrial.
[¶13] Ekstrom further contends the North Dakota Constitution may provide
even greater protections under its double jeopardy provision. See State v.
Herrick, 1999 ND 1, ¶ 22, 588 N.W.2d 847. For this proposition she relies on
Justice Levine’s reasoning in her dissent in State v. Jacobson, 545 N.W.2d 152,
156 (N.D. 1996). Ekstrom asserts the City “clearly” acted with indifference
towards the mistrial committing prosecutorial overreach at a minimum, if not
[¶14] In Jacobson, it was argued that North Dakota’s constitution provided
greater protections for purposes of double jeopardy than under federal
constitutional law. 545 N.W.2d at 153. We declined to overrule settled law,
stating the framers of our state constitution did not intend an interpretation
different than the Double Jeopardy Clause of the United States. Id. (citing
State v. Allesi, 216 N.W.2d 805, 817-18 (N.D. 1974)). Other than citing to
Justice Levine’s dissenting opinion, Ekstrom offers no new legal or factual
support that North Dakota’s double jeopardy clause was intended to provide
more protection than the double jeopardy clause under the federal constitution.
[¶15] We hold the double jeopardy standard under Kennedy is the proper
standard in North Dakota. See Voigt, 2007 ND 100, ¶ 18, 734 N.W.2d 787. To
the extent Ekstrom now argues about the requisite intent under the Kennedy
standard to provoke her into moving for a mistrial, she did not raise that in the
district court. Rather, she argued that double jeopardy applied, regardless of
the City’s intent, because the City’s misconduct caused the mistrial. She
argued the City and the testifying police officer knew or had reason to know
not to discuss the specific chemical test results, when the test itself was
inadmissible at trial without the correct foundational documentation.
[¶16] Here, the facts and circumstances presented in this case do not bar
Ekstrom’s retrial. As asserted by the City, the police officer was the City’s first
witness early in the trial, it had no reason to provoke a mistrial at that early
stage, and it did not intend to provoke Ekstrom’s mistrial motion. The City
asserts the officer’s unsolicited testimony was, at most, an unintended
mistake. Moreover, the City’s lack of an explicit objection to the mistrial does
not establish an intent to provoke a mistrial. We conclude Ekstrom has not
established the City’s conduct at issue was intended to “goad” her into moving
for a mistrial. See Voigt, 2007 ND 100, ¶ 18, 734 N.W.2d 787.
[¶17] We therefore conclude Ekstrom’s motion for mistrial precludes double
jeopardy from applying and she has not established the City’s conduct in
asking a general question of the police officer goaded or provoked her into
moving for the mistrial. We further hold her attempt to argue the North
Dakota Constitution affords greater protection for double jeopardy is
[¶18] Under the standard adopted in Kennedy, as applied to the facts and
circumstances in this case, we conclude Ekstrom’s retrial was not barred by
[¶19] Ekstrom argues the district court erred in elevating her conviction to an
aggravated first offense DUI without providing jury instructions requiring the
jury to find whether her chemical breath test was .16 or greater. She contends
the court erred by denying her demand for the jury to decide whether her
chemical breath test was .16 or greater.
[¶20] In State v. Watkins, 2017 ND 165, ¶ 9, 898 N.W.2d 442, this Court
In Apprendi v. New Jersey, 530 U.S. 466, 490 (2000), the
United States Supreme Court held that a fact used to enhance a
criminal sentence beyond the statutory maximum for the crime
committed must be decided by a jury beyond a reasonable doubt.
See also Clark v. State, 2001 ND 9, ¶¶ 3, 5, 621 N.W.2d 576. In
Alleyne v. United States, 133 S.Ct. 2151, 2155 (2013), the Supreme
Court extended the reasoning in Apprendi and held that any fact
leading to the imposition of a mandatory minimum sentence must
also be found by a jury beyond a reasonable doubt.
However, because “[n]either Apprendi nor Alleyne errors constitute structural
errors requiring automatic reversal[,] . . . these errors may be waived through
the doctrine of invited error.” Watkins, at ¶ 13 (citations omitted).
[¶21] Ekstrom was prosecuted under W. Fargo Mun. Ord. § 13-0203, which the
parties concede is an equivalent of N.D.C.C. § 39-08-01. Ekstrom argues that
under both sections an individual convicted of a first offense DUI is subject to
minimum mandatory penalties, which are dependent on finding an
aggravating factor: whether the defendant’s chemical test result yielded an
alcohol concentration of at least .16. See W. Fargo Mun. Ord. § 13-0203(5)(a);
N.D.C.C. § 39-08-01(5)(a).
[¶22] Ekstrom contends that neither the ordinance nor the statute provides for
a court to take “judicial notice” of a heightened alcohol concentration when
evaluating the defendant’s sentence, as the court does with prior convictions
under N.D.C.C. § 39-08-01(3). She therefore argues the factfinder must find
the convicted person’s alcohol concentration was in excess of .16 to be convicted
of an aggravated first offense under the ordinance. She asserts the court made
a finding on its own, taking a factual finding away from the jury, and while she
was sentenced within the permissible sentencing range for a class B
misdemeanor, she was still entitled to have the jury make this factual
[¶23] The City responds that this Court should either affirm the sentence or,
in the alternative, remand for resentencing and essentially concedes the jury
should have decided whether Ekstrom’s alcohol concentration was at least .16
to subject her to the ordinance’s mandatory minimum sentence. The City
contends, however, Ekstrom waived the issue by not properly articulating it to
the district court. The City asserts this Court could affirm by concluding the
district court did not substantially rely on the mandatory minimum provision.
The City also contends, however, that if this Court cannot affirm the sentence
on this record, the proper remedy is to remand for resentencing, in which the
district court would not consider the mandatory minimum sentencing
provision in resentencing her.
[¶24] Here, while not an element of the criminal offense, whether Ekstrom’s
chemical breath test was .16 or greater is an aggravating fact for purposes of
the enhanced sentence. The district court found “the best evidence presented
to the Court is that Ms. Ekstrom had a blood alcohol content of .167 within two
hours after operating a motor vehicle.” The jury as the factfinder did not
specifically find this aggravating fact. We therefore reverse and remand to the
district court for resentencing without consideration of the mandatory
minimum under the ordinance.
Outcome: The judgment is affirmed in part, reversed in part, and the case is
remanded for resentencing.