City of Bismarck v. Bosch, 20040157.

• Decision Date: 19 January 2005
• Docket Number: No. 20040157.,20040157.
• Citation: 691 N.W.2d 260,2005 ND 12
• Parties: CITY OF BISMARCK, Plaintiff and Appellee v. Mitchell BOSCH, Defendant and Appellant.
• Court: North Dakota Supreme Court

691 N.W.2d 260

2005 ND 12

CITY OF BISMARCK, Plaintiff and Appellee v. Mitchell BOSCH, Defendant and Appellant.

No. 20040157.

Supreme Court of North Dakota.

January 19, 2005.

Paul H. Fraase (on brief), Assistant City Attorney, Bismarck, N.D., for plaintiff and appellee.

Michael Ray Hoffman, Bismarck, N.D., for defendant and appellant.

VANDE WALLE, Chief Justice.

[¶ 1] Mitchell David Bosch appealed from a conviction entered upon a jury verdict finding him guilty of driving under the influence of alcohol. We hold the trial court did not abuse its discretion in admitting the test results of an Intoxilyzer test, and we affirm.

I

[¶ 2] On November 26, 2003, Bosch was arrested for driving under the influence of alcohol. He was taken to the Bismarck Police Department, where he consented to an Intoxilyzer test. The test indicated Bosch's blood alcohol level was .15 percent.

[¶ 3] Bosch was charged with DUI. He pled not guilty and a jury trial was held on May 13, 2004. At the trial, Bismarck police officer, Allen Nass, testified that he was in charge of the standard solution used for Bosch's Intoxilyzer test. A directive by the State Toxicologist advised that a standard test solution "may be used on up to 50 Intoxilyzer 5000 tests." Bosch's attorney objected to testimony by Nass about the number of tests conducted with the standard solution:

Q. [T]he police department keeps a record of the tests that are conducted on each standard solution?

A. Correct.

Q. And you have that in front of you?

A. Yes, I do.

Q. And you're able to look at that document and determine how many tests were run on this specific standard solution?

A. Yes, I am.

MR. HOFFMAN: Judge, for the record, this is my objection.

THE COURT: Okay.

In chambers counsel explained his objection:

[M]y objection goes to Form 120-I, in that it contains information which would be hearsay and which Mr. Bosch does not have the ability to cross-examine or to confront witnesses.

The items specifically filled in by Bismarck police officers who do these tests, they are done independent of Officer Nass, so he did testify that he was not directly involved in these tests and was not present when the tests were conducted. And, therefore, I submit that all the information contained on Form 120-I would be, like I said, hearsay, no ability to cross-examine. Officer Nass was not involved in any of that information.

....

It is offered to prove the truth of the matter asserted, because they are trying to prove that Plaintiff's Exhibit 4, the foundational document for the Standard Solution 496 is met. And so we're being given information that we have no ability to test. I mean, for example, there could have been tests run that weren't written down. There might have been-there is no way for us to test that information. It's presented to us like out of the blue, and we can't test it. So it is hearsay. It is offered to prove the truth of the matter asserted, and we don't have the right or the ability to cross-examine it. It's just there. And that's the objection.

The trial court overruled Bosch's objection, and Nass testified that the standard solution had been used for 25 tests prior to its use for Bosch's Intoxilyzer test. The jury found Bosch guilty and he appealed.

II

[¶ 4] On appeal, Bosch asserts the trial court abused its discretion in admitting the Intoxilyzer test results over Bosch's "foundation, hearsay and confrontation objections." In his appellate brief, Bosch explains the nature of his objections:

Plaintiff's Exhibit 4, the Standard Solution Analytical Report (Solution No. 496), states in relevant part, "Each bottle of solution may be used on up to 50 Intoxilyzer 5000 tests or forty-five (45) days, which ever comes first." It is Bosch's contention that this foundational requirement of Plaintiff's Exhibit 4 was not adequately and properly shown, and, therefore, foundation for Plaintiff's Exhibit 5, the test result, was lacking.

[O]ver Bosch's hearsay and confrontation objections, Nass was allowed to testify he looked at the document, counted the number of tests run on Standard Solution No. 496, and there were only 25 tests by the time of Bosch's test.... Plaintiff's Exhibit 4 was also filed ... and clearly appears to be a method approved by the state toxicologist under NDCC 39-20-07(5) and (6)(c). Therefore, the requirement of Plaintiff's Exhibit 4 that "Each bottle of solution may be used on up to 50 Intoxilyzer 5000 tests" must scrupulously be met unless the state toxicologist testifies at the trial. Here, the state toxicologist did not so testify.

[¶ 5] Evidence of the amount of alcohol, drugs, or a combination thereof, in a person's blood as shown by a chemical analysis of the blood, breath, saliva, or urine is admissible under N.D.C.C. § 39-20-07, which provides, in relevant part:

5. The results of the chemical analysis must be received in evidence when it is shown that the sample was properly obtained and the test was fairly administered, and if the test is shown to have been performed according to methods and with devices approved by the state toxicologist, and by an individual possessing a certificate of qualification to administer the test issued by the state toxicologist....

6. .... Upon approval of the methods or devices, or both, required to perform the tests and the persons qualified to administer them, the state toxicologist shall prepare and file written record of the approval with the director and the recorder in each county, unless the board of county commissioners designates a different official, and shall include in the record:

a. An annual register of the specific testing devices currently approved, including serial number, location, and the date and results of last inspection.

b. An annual register of currently qualified and certified operators of the devices, stating the date of certification and its expiration.

c. The operational checklist and forms prescribing the methods currently approved by the state toxicologist in using the devices during the administration of the tests.

The material filed under this section may be supplemented when the state toxicologist determines it to be necessary, and any supplemental material has the same force and effect as the material that it supplements.

[¶ 6] Under N.D.C.C. § 39-20-07(5), the results of chemical analysis to determine blood alcohol content must be received in evidence if the test sample was properly obtained, and the test was fairly administered and shown to have been performed in accordance with methods and devices approved by the State Toxicologist. Henderson v. Director, N.D. Dep't of Transp., 2002 ND 44, ¶ 16, 640 N.W.2d 714. Absent testimony by the State Toxicologist, a foundational requirement necessary to show fair administration of a breathalyzer test and admissibility of the test results is a showing that the test was administered in accordance with the approved methods filed with the clerk of the district court. Ringsaker v. Director, N.D. Dep't of Transp., 1999 ND 127, ¶ 8, 596 N.W.2d 328.¹ The purpose of N.D.C.C. § 39-20-07 is to ease the requirements for the admissibility of chemical test results while assuring that the test upon which the results are based is fairly administered. Lee v. North Dakota Dep't of Transp., 2004 ND 7, ¶ 10, 673 N.W.2d 245. Whether an Intoxilyzer test has been properly administered can be determined by proving that the method approved by the State Toxicologist has been scrupulously followed. Johnson v. North Dakota Dep't of Transp., 2004 ND 59, ¶ 12, 676 N.W.2d 807. However, scrupulous compliance does not mean hypertechnical compliance. Id.

[¶ 7] The State Toxicologist filed with the state's attorney the list of certified chemical test operators, the list of approved chemical testing devices, and the approved method to conduct breath tests with the Intoxilyzer 5000 KB-EP, which was used to conduct Bosch's breathalyzer test. These documents were admitted into evidence without objection by Bosch. The State Toxicologist also filed with the state's attorney a standard solution analytical report stating that the standard solution used for Bosch's test was in the required concentration and was approved for use in testing. In that report, the State Toxicologist instructed "[e]ach bottle of solution may be used on up to 50 Intoxilyzer 5000 tests or forty-five (45) days, which ever comes first." Bosch's objection to the trial court's admission of the Intoxilyzer test results is that the State failed to provide adequate proof that the standard solution used for Bosch's test had not been...