20160091 FILED IN THE OFFICE OF THE CLERK OF SUPREME COURT JUNE 16, 2016 STATE OF NORTH DAKOTA

IN THE SUPREME COURT

FOR THE STATE OF NORTH DAKOTA

State of North Dakota, ) ) Plaintiff and Appellant, ) ) vs. ) Supreme Court No.: 20160091 ) District Court No.: 27-2015-CR-01154 Alexander Patrick, ) ) Defendant and Appellee. )

APPEAL FROM THE DISTRICT COURT OF MCKENZIE COUNTY

NORTHWEST JUDICIAL DISTRICT

THE HONORABLE ROBIN A. SCHMIDT

BRIEF OF THE DEFENDANT-APPELLEE

Jeff L. Nehring, ND ID #05410 Whit Skinner, ND ID # 08265 NEHRING LAW OFFICE, PLLC 716 2ND ST W WILLISTON, ND 58801 [email protected] 701-577-5555 Attorneys for Defendant-Appellee

TABLE OF CONTENTS

Table of Contents ...... i

Table of Authorities ...... ii

Statement of the Issues...... ¶1

Statement of the Case...... ¶4

Statement of the Facts ...... ¶5

Standard of Review ...... ¶6

Argument ...... ¶7

Conclusion ...... ¶29

2

TABLE OF AUTHORITIES

CASES City of Fargo v. Salsman, 2009 ND 15, 760 N.W.2d 123 ...... ¶9 Flint v. City of Milwaukee, 91 F.Supp.3d 1032, (E.D. Wis. 2015) ...... ¶26, 27 Gabel v. N.D. Dep't Transp., 2006 ND 178, 720 N.W.2d 433 ...... ¶21 Grand Forks v. Mitchell, 2008 ND 5, 743 N.W.2d 800 ...... ¶21 Heien v. North Carolina, 574 U.S. ___, 135 S.Ct. 530, (2014) ...... ¶24, 25, 26, 27 In re Disciplinary Action Against McGuire, 2004 ND 171, 685 N.W.2d 748 ...... ¶20 Kolender v. Lawson, 461 U.S. 352, 103 S.Ct. 1855 (1983) ...... ¶16, 19 Smith v. Goguen, 415 U.S. 566, (1974)...... ¶19 State v. Gefroh, 2011 ND 153, 801 N.W.2d 429 ...... ¶6 State v. Hawley, 540 N.W.2d 390 (N.D. 1995) ...... ¶22 State v. Holbach, 2009 ND 37, 763 N.W.2d 761...... ¶20 State v. Kordonowy, 2015 ND 197, 867 N.W.2d 690 ...... ¶9, 10, 13, 15 State v. Mertz, 514 N.W.2d 662 (N.D. 1994) ...... ¶13 State v. Ostby, 2014 ND 180, 853 N.W.2d 556...... ¶6 State v. Ova, 539 N.W.2d 857 (N.D. 1995) ...... ¶22 State v. Reis, 2014 ND 30, 842 N.W.2d 845 ...... ¶6 State v. Tognotti, 2003 ND 99, 663 N.W.2d 642 ...... ¶6 Whren v. United States, 517 U.S. 806, 116 S.Ct. 1769 (1996) ...... ¶22

CONSTITUTIONAL PROVISIONS Article I Section 8 of the North Dakota Constitution ...... ¶8 Fourth Amendment of the United States Constitution ...... ¶8

STATUTES N.D.C.C. § 39-21-25(2) ...... passim

OTHER AUTHORITIES Russ Rowlett & University of North Carolina at Chapel Hill, Units: C How Many? A Dictionary of Units of Measurement, http://www.unc.edu/~rowlett/units/dictc.html (last visited Jun 7, 2016) ...... ¶15 Russ Rowlett & University of North Carolina at Chapel Hill, Units: L How Many? A Dictionary of Units of Measurement, http://www.unc.edu/~rowlett/units/dictl.html (last visited Jun 7, 2016) ...... ¶15, 17 Russ Rowlett & University of North Carolina at Chapel Hill, Units: W, How Many? A Dictionary of Units of Measurement, http://www.unc.edu/~rowlett/units/dictw.html (last visited Jun 7, 2016) ...... ¶15

3

STATEMENT OF THE ISSUES

[1] A. Whether the district court correctly ordered evidence should be suppressed because

North Dakota Century Code § 39-21-25(2) was found void for vagueness.

[2] B. Whether the district court correctly ordered evidence should be suppressed because

Officer Ryan Chaffee did not have reasonable and articulable suspicion Alexander

Patrick was violating the law.

[3] C. Whether the district court correctly ordered evidence should be suppressed because

there was no mistake of law by Officer Ryan Chaffee.

STATEMENT OF THE CASE

[4] Patrick accepts the statement of the case as framed by the State.

STATEMENT OF THE FACTS

[5] Patrick accepts the statement of the facts as framed by the State.

STANDARD OF REVIEW

[6] The North Dakota Supreme Court's standard of review for a district court's denial of a motion to suppress evidence is well established:

In reviewing a district court decision on a motion to suppress, we give deference to the district court's findings of fact and we resolve conflicts in testimony in favor of affirmance. State v. Tognotti, 2003 ND 99, ¶ 5, 663 N.W.2d 642. We "will not reverse a district court decision on a motion to suppress . . . if there is sufficient competent evidence capable of supporting the court's findings, and if the decision is not contrary to the manifest weight of the evidence." State v. Gefroh, 2011 ND 153, ¶ 7, 801 N.W.2d 429. Questions of law are fully reviewable on appeal, and whether a finding of fact meets a legal standard is a question of law. Id.

State v. Ostby, 2014 ND 180, ¶ 6, 853 N.W.2d 556 (citing State v. Reis, 2014 ND 30, ¶ 8, 842 N.W.2d 845).

4 ARGUMENT

1. The district court correctly ordered evidence should be suppressed because North Dakota Century Code § 39-21-25(2) was found void for vagueness.

[7] The North Dakota Century Code in question is § 39-21-25(2) and it states:

Whenever a motor vehicle equipped with headlamps as herein required is also equipped with any auxiliary lamps or a spot lamp or any other lamp on the front thereof projecting a beam of intensity greater than three hundred candlepower, not more than a total of four of any such lamps on the front of a vehicle may be lighted at any one time when upon a highway

[8] The language challenged in this section is candlepower. Patrick asserts the statute is unconstitutionally vague and a violation of Patrick’s constitutional rights pursuant to the Fourth

Amendment of the United States Constitution and Article I Section 8 of the North Dakota

Constitution.

[9] The Court in State v. Kordonowy, 2015 ND 197 ¶ 16, 867 N.W.2d 690, reaffirmed the requirements the Court applies when a law is challenged for vagueness:

All laws must meet two requirements to survive a void-for-vagueness challenge: (1) the law must create minimum guidelines for the reasonable police officer, judge, or jury charged with enforcement of the statute; and (2) the law must provide a reasonable person with adequate and fair warning of the proscribed conduct. We use the “reasonable person” standard in reviewing a statute to determine whether these two dictates are satisfied. A law is void for vagueness if it either forbids or requires the doing of an act in terms so vague that men of common intelligence must necessarily guess at its meaning and differ as to its application.

Id. (quoting City of Fargo v. Salsman, 2009 ND 15, ¶ 21, 760 N.W.2d 123).

[10] North Dakota Century Code 39-21-25(2) cannot meet either of the two requirements stated in Kordonowy, and thus does not survive the void for vagueness challenge. The first requirement of the void-for-vagueness challenge: “the law must create minimum guidelines for the reasonable police officer, judge, or jury charged with enforcement of the statute.”

Kordonowy, 2015 ND at ¶ 16. 5 [11] Watford City Officer Ryan Chaffee (hereinafter “Chaffee”) in his affidavit only references six white lights. (Appeal Appendix (hereinafter “App.”) App. 4). He does not once reference the lights projecting a beam of candlepower. At the District Court motion to suppress hearing, Chaffee agreed that it would be impossible to determine whether or not a motorist had a forward facing lamp with an intensity of greater than 300 candlepower. (December 21, 2015,

Suppression Hearing Transcript (hereinafter “T.”) 5:22-25). Chaffee stated he believed candlepower is the amount of light that’s emitted from a specific to a specific measurement. (T. 5:1-3). Chaffee also stated he does not have any equipment to allow him to check the candlepower of any light nor conversion charts to convert watts or lumens to candlepower. (T. 5:4-15, 11:4-7). It is clear Chaffee does not have the minimum guidelines as a reasonable officer to enforce N.D.C.C. § 39-21-25(2).

[12] Furthermore, the District Court in their Order stated, “[e]ven with a complicated equation, it is unclear to the Court how a person would measure the candlepower or converted measurement.” (App. 30). North Dakota Century Code § 39-21-25(2) also does not create a minimum guideline to be considered by a reasonable judge. The first requirement fails the void- for-vagueness challenge, as it does not provide a minimal guideline to govern reasonable law enforcement or to be considered by a reasonable judge to enforce the statute.

[13] The second requirement for a law to survive the void-for-vagueness challenge: “the law must provide a reasonable person with adequate and fair warning of the proscribed conduct.”

Kordonowy, 2015 ND at ¶ 16. “In determining whether the meaning of a statute is fairly ascertainable or adequate warning is given, we view the statute from the standpoint of the reasonable person who might be subject to its terms.” State v. Mertz, 514 N.W.2d 662, 668

(N.D. 1994).

6 [14] The term candlepower is not fairly ascertainable. Candlepower is not included in vehicle descriptions, and it was not included on the after-market lights Patrick purchased. (T.

15:11-13). As Patrick testified, he is not aware of how to calculate candlepower. (T. 15:19-21).

No person of common intelligence would able to calculate candlepower. An individual of common intelligence would be required to guess at candlepower’s meaning, and individuals will differ as to its application.

[15] “A law is void for vagueness if it either forbids or requires the doing of an act in terms so vague that men of common intelligence must necessarily guess at its meaning and differ as to its application.” Kordonowy, 2015 ND at ¶ 16. Converting candlepower to lumens or wattage is not as simple as converting the U.S. standard system (for example, miles) to the standard metric system (meters). Candlepower is a unit formerly used measures the light-radiating capacity.1

Russ Rowlett & University of North Carolina at Chapel Hill, Units: C How Many? A Dictionary of Units of Measurement, http://www.unc.edu/~rowlett/units/dictc.html (last visited Jun 7,

2016). is the International System unit for measuring the intensity of light.2 Id.

1 candlepower (cp): a unit formerly used for measuring the light-radiating capacity of a lamp or other light source. One candlepower represents the radiating capacity of a light with the intensity of one "international candle," or about 0.981 candela as now defined. Since 1948 the candela has been the official SI unit of light intensity, and the term "candlepower" now means a measurement of light intensity in , just as "voltage" means a measurement of electric potential in volts. Russ Rowlett & University of North Carolina at Chapel Hill, Units: C How Many? A Dictionary of Units of Measurement, http://www.unc.edu/~rowlett/units/dictc.html (last visited Jun 7, 2016).

2 candela (cd): the SI base unit for measuring the intensity of light. Candela is the Latin word for "candle." The unit has a long and complicated history. Originally, it represented the intensity of an actual candle, assumed to be burning whale tallow at a specified rate in grains per hour. Later this definition was replaced with a definition in terms of the light produced by the filament of an incandescent light bulb. Still later a standard was adopted that defined the candela as the intensity of 1/600 000 square meter of a "black body" (a perfect radiator of energy) at the temperature of freezing platinum (2042 K) and a pressure of 1 atmosphere. This definition has also been discarded, and the candela is now defined to be the of a light source producing single-frequency light at a frequency of 540 terahertz (THz) with a power of 1/683 watt per steradian, or 18.3988 milliwatts over a complete sphere centered at the light source. The frequency of 540 THz corresponds to a wavelength of approximately 555.17 nanometers (nm); normal human eyes are more sensitive to the green light of this wavelength than to any other. In order to produce 1 candela of single-frequency light of wavelength l, a lamp would have to radiate 1/(683V(l)) watts per steradian, where V(l) is the relative sensitivity of the eye at wavelength l. Values of V(l), defined by the International Commission on Illumination (CIE), are available online from the Color and Vision Research Laboratories of the University of California at San Diego and the University of Tübingen, Germany. Id. 7 is the International System unit for measuring the flux of light being produced by a light source or received by a surface.3 Russ Rowlett & University of North Carolina at Chapel Hill, Units: L

How Many? A Dictionary of Units of Measurement, http://www.unc.edu/~rowlett/units/dictl.html (last visited Jun 7, 2016). Watt is the International

System unit for measuring power and a unit used to describe light bulbs.4 Russ Rowlett &

University of North Carolina at Chapel Hill, Units: W, How Many? A Dictionary of Units of

Measurement, http://www.unc.edu/~rowlett/units/dictw.html (last visited Jun 7, 2016).

Although there are conversion formulas, none of the conversions are exact because candlepower, candelas, lumens and watts all measure or are measuring units for different aspects of light which depend upon light being emitted uniformly in all directions.

[16] "[T]he void-for-vagueness doctrine requires that a penal statute define the criminal offense with sufficient definiteness that ordinary people can understand what conduct is prohibited and in a manner that does not encourage arbitrary and discriminatory enforcement."

Kolender v. Lawson, 461 U.S. 352, 357, 103 S.Ct. 1855 (1983). Four lights not projecting a

3 lumen (lm): the SI unit for measuring the flux of light being produced by a light source or received by a surface. The intensity of a light source is measured in candelas. One lumen represents the total flux of light emitted, equal to the intensity in candelas multiplied by the solid angle in steradians (1/(4·pi) of a sphere) into which the light is emitted. Thus the total flux of a one-candela light, if the light is emitted uniformly in all directions, is 4·pi lumens. "Lumen" is a Latin word for light. Russ Rowlett & University of North Carolina at Chapel Hill, Units: L How Many? A Dictionary of Units of Measurement, http://www.unc.edu/~rowlett/units/dictl.html (last visited Jun 7, 2016).

4 watt (W) [1]: the SI unit of power. Power is the rate at which work is done, or (equivalently) the rate at which energy is expended. One watt is equal to a power rate of one joule of work per second of time. This unit is used both in mechanics and in electricity, so it links the mechanical and electrical units to one another. In mechanical terms, one watt equals about 0.001 341 02 horsepower (hp) or 0.737 562 foot-pound per second (lbf/s). In electrical terms, one watt is the power produced by a current of one ampere flowing through an electric potential of one volt. The name of the unit honors James Watt (1736-1819), the British engineer whose improvements to the steam engine are often credited with igniting the Industrial Revolution. watt (W) [2]: a unit used to describe light bulbs. Incandescent light bulbs have always been sold in standard wattages such as 100 watt and 60 watt. These bulbs are now being replaced by more efficient sources such as compact fluorescent (CFL) or light-emitting diode (LED) "bulbs." For marketing purposes, these devices are often marked with the wattage of the incandescent bulbs, which they are intended to replace. (CFLs require very roughly 1/4 the power of incandescent bulbs, and LEDs very roughly 1/8). Units: W, How Many? A Dictionary of Units of Measurement, http://www.unc.edu/~rowlett/units/dictw.html (last visited Jun 7, 2016). 8 beam of intensity higher than 300 candlepower is not sufficiently defined so ordinary people can understand the prohibited conduct. N.D.C.C. § 39-21-25(2).

[17] Defining the terminology is sufficiently beyond an ordinary person’s understanding, and the need to then attempt to reach a conversion of multiple units which all measure a different property goes far beyond a understanding of an ordinary person. A candela may be converted to a lumen if the light is emitted uniformly in all directions. Russ Rowlett & University of North

Carolina at Chapel Hill, Units: L How Many? A Dictionary of Units of Measurement, http://www.unc.edu/~rowlett/units/dictl.html (last visited Jun 7, 2016). However, that conversion cannot happen with a light mounted on a vehicle because the light is not emitted uniformly. Converting candelas to lumens may be possible, but the requirement is for an ordinary person or a person of common intelligence. The level of understanding and required formulas is beyond an ordinary person or a person of common intelligence.

[18] As stated above, Chaffee does not ability to quantify a unit of candlepower or equipment to determine candlepower. (T. 5). If a law enforcement officer does not have the understanding or equipment to determine candlepower, Patrick, as an ordinary person, must not be expected to define or understand candlepower. Candlepower fails the second requirement of the void-for- vagueness challenge.

[19] "[T]he more important aspect of the vagueness doctrine 'is not actual notice, but the other principal element of the doctrine--the requirement that a legislature establish minimal guidelines to govern law enforcement.'" Kolender, 461 U.S. at 358 (quoting Smith v. Goguen,

415 U.S. 566, 574 (1974)). From Chaffee’s testimony at the suppression hearing, it is very apparent that he does not have a minimal guideline to govern him in enforcing the law. (T. 5).

Chaffee stated he did not measure the 300 candlepower because he did not have the equipment 9 to measure candlepower. (T. 11:4-7). More importantly, Chaffee stated he did not need to measure 300 candlepower because he believed it would have been in excess of 300 candlepower. (T. 11:8-11). Earlier in the hearing Chaffee stated he stopped Patrick because of how bright his lights were compared to other lights, and Patrick had four fog lights. (T. 9:8-10).

Four auxiliary lamps or spot lamps are only illegal if the lights project a beam of intensity over

300 candlepower. N.D.C.C. § 39-21-25(2). Chaffee admitted he had no way of measuring if the fog lights were over 300 candlepower; he just believed they were over 300 candlepower. (T.

11:4-11). Candlepower does not establish minimum guidelines to govern law enforcement.

Kolender, 461 U.S. at 358. The vagueness of the term candlepower encourages arbitrary and discriminatory enforcement. Id. at 357. An Officer can pull over anyone who has more than four lights illuminated and then claim he does not know how to check the 300 candlepower. There is no way for N.D.C.C. § 39-21-25(2) to be enforced by law enforcement.

[20] “A statute is not unconstitutionally vague ‘if the challenged language, when measured by common understanding and practice, gives adequate warning of the conduct proscribed and marks boundaries sufficiently distinct for fair administration of the law.” State v. Holbach, 2009

ND 37, ¶ 24, 763 N.W.2d 761 (quoting In re Disciplinary Action Against McGuire, 2004 ND

171, ¶ 19, 685 N.W.2d 748). Candlepower is unconstitutionally vague, it is not measured by a common understanding and practice. During the District Court suppression hearing it was clear no one had a clear definition or ability to convert candlepower. (T. 5:10-15, 6:19-24, 12:12-25,

13:1-8, 15:19-21). Since there is no common understanding and practice of candlepower measurement, there cannot be an adequate warning of the conduct proscribed and boundaries marked for fair administration of the law.

10 2. The District Court correctly ordered evidence should be suppressed because Officer Ryan Chaffee did not have reasonable and articulable suspicion Alexander Patrick was violating the law.

[21] An investigative stop of an automobile is a type of Fourth amendment seizure. City of

Grand Forks v. Mitchell, 2008 ND 5, ¶ 7, 743 N.W.2d 800. Investigatory traffic stops are valid when the officer conducting the stop had "a reasonable and articulable suspicion the motorist has violated or is violating the law." Gabel v. N.D. Dep't Transp., 2006 ND 178, ¶9, 720

N.W.2d 433.

[22] Reasonable suspicion to justify a stop exists when “‘a reasonable person in the officer's position would be justified by some objective manifestation to suspect potential criminal activity.’” State v. Ova, 539 N.W.2d 857, 859 (N.D. 1995). An objective manifestation could not be determined by Chaffee, when N.D.C.C. § 39-21-25(2) is void for vagueness. "[T]he reasonable-and-articulable-suspicion standard is objective, and it does not hinge upon the subjective beliefs of the arresting officer." State v. Hawley, 540 N.W.2d 390, 392 (N.D. 1995);

See Whren v. United States, 517 U.S. 806, 813, 116 S.Ct. 1769 (1996) (rejecting the argument that the reasonableness of traffic stops depends on the actual motivations of the officers).

[23] As discussed at length in the first issue, candlepower cannot be quantified. Officer

Chaffee stated he did not have equipment to measure the unit of candlepower. (T. 5:1-15, 11:4-

7). Chaffee’s knowledge is limited to his belief that candlepower is the amount of light that’s emitted from a specific candle to a specific measurement. (T. 5:1-3). Chaffee’s deduction that

Patrick violated the law was he had too many white lights. (App. 4). Chaffee subjective belief that since the lights appeared brighter, the lights must be higher than 300 candlepower.

Candlepower does not provide a minimum guideline of enforcement, thus it creates an opportunity for arbitrary and subjective enforcement. Therefore, Chaffee did not have

11 reasonable and articulable suspicion that a law was being violated to conduct a stop on Patrick as N.D.C.C. § 39-21-25(2) is unconstitutionally vague.

3. The district court correctly ordered evidence should be suppressed because there was no mistake of law by Officer Ryan Chaffee.

[24] The Supreme Court in Heien v. North Carolina, 574 U.S. ___, 135 S.Ct. 530, 536

(2014), held, “that reasonable suspicion can rest on a mistaken understanding of the scope of a legal prohibition.” The District Court addressed whether Chaffee made a mistake of law comparable to that made by the officer in ruled Heien, and the District Court determined the present case is distinguishable from Heien. (App. 31). The District Court stated, “the law enforcement officer was able to measure how many stop lamps were on the vehicle;” whereas in the present case, “there is no way for a reasonable persons to know what the law prohibits.”

(App. 31). The Court ruled that a mistake of law does not apply in this case. (App. 31).

[25] Unlike Heien, where the officer believed the North Carolina statute required two working stop lamps, Chaffee understood the law that he was applying. During the suppression hearing, Chaffee agreed that the statute indicates that a person is limited in the number of forward facing auxiliary lamps when the intensity of the lamps is greater than 300 candlepower.

(T. 4:14-19). Chaffee also agreed it would be impossible for him to determine whether or not a motorist had a forward facing lamp with a beam intensity greater than 300 candlepower. (T.

5:22-25). Chaffee discussed how he believed he could not look up what a unit of candlepower was because of the amount of time it would take, and he was concerned about exceeding the scope of the traffic stop longer than what it would take to conduct it. (T. 6:21-24). Although

Chaffee is unable to determine the beam intensity of 300 candlepower, he understood if there are more than four front facing lights they must be less than 300 candlepower. (T. 7:21-8:2).

Chaffee did distinguish the number of lights and their brightness during the suppression hearing, 12 which makes it clear Heien is not applicable.

[26] “The Fourth Amendment tolerates only reasonable mistakes, and those mistakes— whether of fact or of law—must be objectively reasonable.” [Emphasis in original]. Heien at

539. “An officer cannot make a reasonable mistake about the law or the facts if he has no knowledge of either.” Flint v. City of Milwaukee, 91 F.Supp.3d 1032, 1058 (E.D. Wis. 2015), see Heien, 135 S.Ct. at 541 (Kagan, J., concurring) (explaining that “the government cannot defend an officer's mistaken legal interpretation on the ground that the officer was unaware of or untrained in the law”).

[27] As stated in Flint and Justice Kagan’s concurring opinion in Heien, Chaffee did not make a mistake to the legal interpretation of N.D.C.C. § 39-21-25(2). He knew Patrick had six white lights on the front of his vehicle, and Chaffee stated during the suppression hearing he believed the white lights were over 300 candlepower. (App. 4, T. 7:25-8:2, T. 11:8-11). Chaffee understood the requirements of N.D.C.C. § 39-21-25(2). Therefore, there is no mistake of law as described in Heien.

[28] Chaffee could not apply N.D.C.C. § 39-21-25(2) because of his inability to quantify a unit of candlepower and not having equipment to determine candlepower. (T. 5:4-15, 11:4-7).

Consequently, Chaffee could not determine if the lights were over 300 candlepower. The issue rests in the term candlepower and Chaffee’s, or any reasonable officer’s, inability to apply

N.D.C.C. § 39-21-25(2) because Chaffee does not have the knowledge or the training to determine what is 300 candlepower. In this case, there was not a mistake of law. There was an inability to apply the law.

CONCLUSION

13 [¶29] Based on the foregoing, Patrick respectfully requests this Court affirm the decision of the

District Court, as void-for-vagueness applies in this case and mistake of law is not applicable, the District Court properly granted Patrick’s motion to suppress.

DATED this 16th day of June, 2016.

NEHRING LAW OFFICE, PLLC ATTORNEYS FOR DEFENDANT-APPELLEE 716 2ND ST W WILLISTON, ND 58801

/s/ Jeff L. Nehring______Jeff L. Nehring, ND ID #05410 Whit Skinner, ND ID # 08265 [email protected] mailto:[email protected] 701-577-5555

14 IN THE SUPREME COURT

FOR THE STATE OF NORTH DAKOTA

State of North Dakota, ) ) Plaintiff and Appellant, ) CERTIFICATE OF SERVICE ) vs. ) Supreme Court No.: 20160091 ) District Court No.: 27-2015-CR-01154 Alexander Patrick, ) ) Defendant and Appellee. )

[¶1] I hereby certify I made service of the foregoing Brief of the Defendant-Appellee and Certificate of Service upon Stephenie Davis, Assistant State’s Attorney, Attorney for Plaintiff-

Appellant, by emailing a true and correct copy of the same to [email protected], on this

16th day of June, 2016.

/s/ Jeff L. Nehring______Jeff L. Nehring, ND ID #05410 Whit Skinner, ND ID # 08265 NEHRING LAW OFFICE, PLLC 716 2ND ST W WILLISTON, ND 58801 [email protected] 701-577-5555 Attorneys for Defendant-Appellee