## Facts

- On July 1, 2017, Bismarck Police Officer Joseph Olsen stopped Paul King after observing signs of impaired driving.
- During the stop, Olsen detected an odor of alcohol coming from King’s vehicle and observed that King’s eyes were red and glossy.
- King performed field sobriety testing and was arrested for driving under the influence.
- Olsen advised King of his Miranda rights and read King North Dakota’s implied-consent advisory.
- King initially agreed to submit to an evidentiary breath test and was transported to the Bismarck Police Department.
- At the police department, Olsen again asked King to submit to the breath test; King said “no.”
- Olsen asked King whether he was refusing; King responded “yes.”
- The City of Bismarck charged King under a city ordinance that criminalized operating a motor vehicle while under the influence and/or refusing to submit to chemical testing.
- At King’s jury trial in district court, he requested additional jury instructions, including an instruction that “confusion” can be a defense to refusal if the jury found he was confused when the test was offered.
- The district court denied King’s requested instructions and instructed the jury using its own set of instructions on the refusal charge.
- The jury found King guilty of refusing to submit to chemical testing, and the court entered a criminal judgment of conviction.
- On appeal, King challenged the jury-instruction rulings, the process for objecting to the instructions, and the admission of testimony concerning a preliminary screening breath test (PBT).

## Issues

1. Whether the district court erred by denying King’s requested jury instructions, including a proposed instruction on confusion as a defense to refusal.
2. Whether King was denied an opportunity to object on the record to the jury instructions.
3. Whether the admission of testimony regarding a preliminary screening test required reversal.

## Decision

- The North Dakota Supreme Court affirmed the judgment of conviction.
- The court held the instructions, read as a whole, correctly stated the law on refusal and were not misleading; the district court was not required to give King’s requested wording or a separate confusion instruction without evidentiary support for that theory.
- The court rejected King’s claim that he lacked an opportunity to object to the instructions, concluding the record did not show reversible error in how objections were handled.
- The court held that any error related to testimony about the preliminary screening test did not warrant reversal because King failed to show prejudice affecting substantial rights in light of the remaining evidence, including his express “no” and “yes” responses confirming refusal.

## Legal Principles

- Jury instructions must correctly and adequately inform the jury of the applicable law and must not mislead or confuse the jury; appellate review considers the instructions as a whole.
- A trial court has discretion in the wording of instructions and is not required to use a party’s requested language; it may refuse a requested instruction that is irrelevant, unsupported by the evidence, or adequately covered by other instructions.
- A defendant is entitled to an instruction on a defense theory only when there is evidence supporting that theory and the theory, if believed, could create reasonable doubt as to an element the prosecution must prove.
- In refusal-to-submit cases, a proposed “confusion” instruction is not required merely because the defendant argues confusion; there must be evidence from which a jury could find confusion that bears on whether the defendant refused under the charged legal standard.
- Evidentiary error is reversible only if it affects substantial rights; if the same result is supported by other properly admitted evidence, the error is harmless.

## Conclusion

The North Dakota Supreme Court affirmed King’s conviction for refusing chemical testing because the jury instructions given sufficiently and correctly stated the governing law without a separate confusion instruction, the record did not show King was denied a chance to object to the final instructions, and any error in admitting preliminary screening-test testimony was harmless in light of King’s unequivocal refusal of the evidentiary breath test.


City of Bismarck v. King, 924 N.W.2d 137 (2019)