The North Dakota Supreme Court released an opinion on Thursday, Sept. 11, overruling a district court judge’s denial of motions to dismiss charges against two nurses accused of alleged drug diversion activity.

Desiree Desjardins, 54, Garrison, and Jennifer Napora, 47, Surrey, faced multiple felony counts related to alleged standard of care violations at a Minot healthcare clinic formerly owned and operated by Desjardins called Lakeview Health Clinic.

Desjardins and Napora, who are both licensed advanced practice registered nurses or nurse practitioners, were accused of overprescribing controlled substances to approximately 55 patients between Feb. 10, 2020, and Feb. 10, 2023, according to court documents. Investigators alleged from Feb. 10, 2020, through Dec. 31, 2021, Desjardin and Napora dispensed 22,181 controlled substance pills, tablets or capsules, and 76 fentanyl patches to just five people in less than 23 months.

According to the Supreme Court’s opinion, special Ward County Assistant Attorney Marina Spahr had moved to dismiss the charges with prejudice against Napora in January and against Desjardins in April, stating a civil settlement agreement had been reached with the defendants resolving the issues presented in the criminal cases. After respective hearings, District Court Judge Gary Lee denied the dismissal motions, concluding the State cannot compromise a felony by civil settlement and dismissal was against the public interest. The state was forced to rescind the civil agreement with Napora due to the commencement of a new investigation involving Napora, according to court documents.

The State petitioned the North Dakota Supreme court for relief, arguing Lee erred by denying the dismissal of the felony charges. The state further argued there was no adequate alternative remedy, and a review was necessary to ensure the proper application of the law and preservation of prosecutorial discretion.

Lee argued the state had failed to seek alternative remedies including amending the criminal information or requesting an evidentiary hearing

According to the unanimous opinion from Justice Lisa Fair McEvers, the justices agreed the state had not acted against the public interest when it motioned to dismiss the charges and remedy through a civil agreement.

Additionally, McEvers wrote the statues around “compromises” did not apply to the State’s motions to dismiss, as the Century Code compromise statues do not prevent the state from moving for dismissal. McEvers continued writing that the law does not allow a district court to deny a dismissal because it has the potential to undermine “some broader societal concern.”

The justices concluded Lee improperly substituted his judge for that of the prosecutor in determining whether to maintain the prosecution against Napora, and abused his discretion.

“Judge Lee determined criminal penalties were more appropriate than

the professional sanctions achieved through civil settlement. Because the State was acting in good faith and there has been no indication it has abdicated its prosecutorial duties, we conclude Judge Lee abused his discretion in denying the State’s motion to dismiss in the Napora case,” McEvers wrote.

The Supreme Court ultimately granted the state’s petition for a supervisory writ, and directed Lee to reverse the orders denying the motions to dismiss the criminal charges with prejudice against the defendants.