Frost v. North Dakota Dept. of Transp., 910369

• Court: North Dakota Supreme Court
• Writing for the Court: MESCHKE; ERICKSTAD, C.J., LEVINE and VANDE WALLE, JJ., and HUNKE; HUNKE, D.J., sitting as a member of the Court to fill the vacancy created by the resignation of GIERKE, J. JOHNSON
• Citation: Frost v. North Dakota Dept. of Transp., 487 N.W.2d 6 (N.D. 1992)
• Decision Date: 01 June 1992
• Docket Number: No. 910369,910369
• Parties: Timothy Allan FROST, Appellee, v. NORTH DAKOTA DEPARTMENT OF TRANSPORTATION, Appellant. Civ.

Page 6

487 N.W.2d 6

Timothy Allan FROST, Appellee, v. NORTH DAKOTA DEPARTMENT OF TRANSPORTATION, Appellant.

Civ. No. 910369.

Supreme Court of North Dakota.

June 1, 1992.

Thomas M. Tuntland (argued), Mandan, for appellee.

Elaine Ayers (argued), Asst. Atty. Gen., Atty. Gen.'s Office, Bismarck, for appellant.

MESCHKE, Justice.

The North Dakota Department of Transportation appeals from a district court judgment reversing the Department's decision to suspend Timothy Allen Frost's driving privileges. The court held that the Intoxilyzer test record was not satisfactorily authenticated. We hold that the test record was sufficiently identified, and we reverse the district court judgment and reinstate the Department action.

Sgt. Keith Witt of the Bismarck Police Department arrested Frost for driving under the influence. At the police station, Frost consented to an Intoxilyzer breath test. The test was given by Officer Scott Meyers, a certified chemical test operator. The test showed a blood alcohol concentration of 0.18 percent.

At the administrative hearing, a copy of the "Intoxilyzer Test Record and Checklist" signed by Meyers was offered for evidence from the Department's records. The back of the copy of the Intoxilyzer checklist and test record had a stamped certification that said:

The undersigned hereby certifies that the information contained on the documents herein is a true and correct printed record of the information maintained in the files of the Bismarck Police Department relative to the individual named herein. Further, the undersigned is charged with the care and custody of said information.

Beneath this certification, the dated signature of Barb Hollan-Simonson was affixed. Below that, the signature and seal of notary public Jean Leuwer, along with the date her commission expires, was placed, as an apparent (though unstated) acknowledgement of Hollan-Simonson's signature.

Frost objected to this copy of the checklist and test record because it was not certified by, or forwarded to the Department by, a certified breath test operator as allegedly required by NDCC 39-20-03.1(3) and 39-20-05(4). Witt testified that he did not personally send any documents to the Department, but gave them to the records unit at the police station for transmission to the Department. Meyers, the operator who gave the test and who signed the original test record, did not testify. It is clear that Meyers did not certify the copy of the test record or personally forward the copy of it to the Department.

The hearing officer overruled Frost's objection. The hearing officer determined that "the statute was followed," admitted the test record into evidence, and concluded that the test was fairly administered and that Frost had more than 0.10 percent blood alcohol content by weight. Frost's driving privileges were suspended for 364 days.

On appeal to the district court, Frost argued that NDCC 39-20-05(4) directed that the copy of the checklist and test record must be certified by and submitted to the Department by Meyers, the certified breath test operator, in order to be used at the administrative hearing. Frost also contended that the copy of the checklist and test record is inadmissible under NDREv 902(2) and (4) because there is no additional certification under seal that Hollan-Simonson had any official capacity at the police station or that her signature was genuine. The district court agreed, concluding that "the record was not properly certified either by a chemical test operator or by a keeper of the records in accordance with the North Dakota Rules of Evidence and the statutes applicable to the record...." The court reversed the Department's decision suspending Frost's license. The Department appeals.

An Intoxilyzer test result is admissible in an administrative proceeding when it is shown that the test was "fairly administered." NDCC 39-20-07. The statute does not require testimony of the state toxicologist or of the Intoxilyzer operator to show fair administration of the test. Rather, the purpose of 39-20-07 is "to ease the requirements for admissibility of chemical test results while ensuring that the test upon which the results are based is fairly administered." Salter v. Hjelle, 415 N.W.2d 801, 803 (N.D.1987). Thus, documents, including certified copies of the operational checklist, of the approved methods filed by the state toxicologist with the clerk of district court, and of records showing that the device was approved and that the operator was qualified, are admissible to prove fair administration of the test. Brandt v. N.D. State Highway Commissioner, 409 N.W.2d 645, 646-647 (N.D.1987); State v. Schneider, 270 N.W.2d 787, 791 (N.D.1978). The statutory scheme authorizes the use of documentary evidence to expedite and simplify the procedure.

Generally, before documentary evidence is admissible it must be authenticated. R & D Amusement Corp. v. Christianson, 392 N.W.2d 385, 386 (N.D.1986). Authentication is simply identification. Black's Law Dictionary, p. 671 (5th ed. 1978). Identification "as a condition precedent to admissibility is satisfied by evidence sufficient to support a finding that the matter in question is what its proponent claims." NDREv 901(a). Evidence that a purported public record is from the public office where items of that nature are kept, and methods of identification authorized by statute conform with Rule 901(a). NDREv 901(b)(7) and (10). Additionally, extrinsic evidence of authenticity as a condition precedent to admissibility is not required with respect to signatures, documents, or other matters declared by statute to be presumptively or prima facie genuine or authentic. NDREv 902(10).

The purpose and concept of self-authentication rests upon the proposition that documents in which the risk of falsification is slight should be tendered and accepted as evidence of what they purport to be without the prior testimony of an authenticating witness. This "presumptive authenticity" in no way precludes any evidentiary challenge of the genuineness of the offered writing, but simply serves to obviate the necessity of preliminary authentication by the proponent to secure admission.

State v. Moore, 286 N.W.2d 274, 282 (N.D.1979) (Citation omitted). While use of self-authenticated documents expedites a trial or hearing, that does not foreclose other evidence to discredit or refute the authenticity of a particular document.

For an administrative hearing on a license suspension, the Legislature has sought to maximize the use of documentary evidence to simplify and expedite those proceedings, while preserving a driver's right to dispute the fair administration of blood tests.

At a hearing under this section, the regularly kept records of the commissioner may be introduced. Those records establish prima facie their contents without further foundation. For purposes of this chapter, any copy of a certified copy of an analytical report of a blood, urine, or saliva sample received by the commissioner from the office of the state toxicologist or a law enforcement officer, a certified copy of the checklist and test records received by the commissioner from a certified breath test operator, and any copy of a certified copy of a certificate of the office of the state toxicologist relating to approved methods, devices, operators, materials, and checklists used for testing for blood alcohol concentration received by the commissioner from the office of the state toxicologist or the clerk of district court, are regularly kept records of the commissioner.

NDCC 39-20-05(4) [Emphasis supplied]. Thus, the statute authorizes the use of a self-authenticated copy of the checklist and test record received by the Department from a "certified breath test operator." The question here is who must certify the test record forwarded to the Department.

We reject Frost's assertion that, to be admissible under NDCC 39-20-05(4), the copy of the checklist and test record must be certified by the certified breath test operator. Although the statute directs that the copy of the checklist and test record be certified, the statute does not designate who must certify the copy. It has long been the law in this state that an official record may be proved "by the original or by a copy, certified by the legal keeper thereof." NDCC 31-09-10(5). 5 Weinstein's Evidence, p 901(b)(7), p. 901-122, explains:

Where the person who submits the record is also the keeper of the record, admissibility is not affected by his lack of knowledge of the contents. Proof of proper custody does not depend so much on the familiarity of office personnel with the material in question as with the authority of the office in which the material is found. Persons who keep records in a public office need not be able to authenticate the material by their...