State Of N.D. v. Gietzen

• Decision Date: 11 May 2010
• Docket Number: No. 20090307.,20090307.
• Citation: 2010 ND 82,786 N.W.2d 1
• Parties: STATE of North Dakota, Plaintiff and Appelleev.Shane Daniel GIETZEN, Defendant and Appellant.
• Court: North Dakota Supreme Court

786 N.W.2d 1

2010 ND 82

STATE of North Dakota, Plaintiff and Appelleev.Shane Daniel GIETZEN, Defendant and Appellant.

No. 20090307.

Supreme Court of North Dakota.

May 11, 2010.

Bryan David Denham, Assistant State's Attorney, Bismarck, ND, for plaintiff and appellee.

Michael Ray Hoffman, Bismarck, ND, for defendant and appellant.

Ken R. Sorenson (on brief), Office of Attorney General, Bismarck, ND, for amicus curiae.

CROTHERS, Justice.

[¶ 1] Shane Gietzen appeals the district court's order entering judgment on the jury's verdict finding Gietzen guilty of driving under the influence of alcohol with a blood-alcohol concentration of 0.08 percent or greater. We affirm.

I

[¶ 2] On May 23, 2009, Gietzen was arrested in Bismarck, North Dakota for driving under the influence of alcohol with a blood-alcohol concentration of 0.08 percent or greater. Gietzen was stopped by North Dakota State Highway Trooper Jeremiah Bohn, who testified Gietzen smelled of alcohol, had watery and bloodshot eyes and failed the horizontal gaze nystagmus field test. Officer Bohn transported Gietzen to a medical center where blood was drawn from Gietzen. Officer Bohn used a blood testing kit supplied by the North Dakota State Toxicologist, initially inspecting the exterior of the kit to ensure that it was sealed and that the expiration date had not passed. Officer Bohn next opened the kit and inspected its contents, ensuring the kit was intact. The kit was then passed to a registered nurse, who drew Gietzen's blood.

[¶ 3] Gietzen's initial blood draw failed to produce a measurable amount of blood due to a defective seal on the blood-draw apparatus. A second kit was obtained and inspected by Officer Bohn, and the kit was passed to the same registered nurse. After the nurse completed the second blood draw, she recorded her actions on Form 104 by checking boxes indicating she used an intact kit, observed powder in the vacutainer tube, used the disinfectant provided in the kit, used the needle provided in the kit, drew blood into the provided tube and inverted the tube several times. Officer Bohn also completed his portion of Form 104 by checking boxes indicating he used an intact kit, sealed the blood tube, placed the blood tube in a protective container, placed the protective container in a plastic bag, placed the plastic bag in a mailing box and sealed the box with tamper-evident tape. The sealed box containing Gietzen's blood sample was mailed to the State Crime Lab for analysis.

[¶ 4] At the State Crime Lab, Gietzen's blood sample was analyzed by a forensic scientist. The scientist determined the blood-alcohol concentration of the sample was 0.13 percent, and she reported her findings on Form 107. The Form 104 and Form 107 associated with Gietzen's arrest were analyzed by a deputy state toxicologist, who signed a document certifying the chemical analysis of Gietzen's blood sample was conducted according to the State's approved method for chemical tests.

[¶ 5] Gietzen was tried by a jury on October 14, 2009. The State called Officer Bohn and the forensic scientist as witnesses, and both were cross-examined by Gietzen. During Officer Bohn's testimony, the State attempted to introduce Form 104 and Form 107. Gietzen objected, arguing the forms violated his right to confront adverse witnesses because they contained testimony from the deputy state toxicologist and the registered nurse, neither of whom were present to testify. The district court sustained Gietzen's objection, but allowed the forms into evidence after a foundation was laid by the forensic scientist's testimony. The jury returned a verdict finding Gietzen guilty of driving under the influence of alcohol with a blood-alcohol concentration greater than 0.08 percent, and Gietzen timely filed this appeal.

II

[¶ 6] Gietzen argues this case should be reversed and an acquittal should be entered because the State failed to show scrupulous compliance with the approved method of the State Toxicologist when Officer Bohn handled the contents of the testing kit and when the nurse did not testify the drawn blood in the tube was inverted several times. We disagree.

[¶ 7] The purpose of N.D.C.C. § 39-20-07 regarding the performance and the interpretation of chemical tests in prosecutions for alcohol related driving offenses is to ease the requirements for the admissibility of chemical test results while assuring fair administration of the test upon which the results are based. See City of Bismarck v. Bosch, 2005 ND 12, ¶ 6, 691 N.W.2d 260 reh'g denied, cert. denied, 545 U.S. 1141, 125 S.Ct. 2980, 162 L.Ed.2d 890 (2005). The requirements of N.D.C.C. § 39-20-07 must be complied with before Form 104 can be introduced into evidence. State v. Schwalk, 430 N.W.2d 317, 322 (N.D.1988). The state toxicologist need not be called when it can be shown that the approved method was followed. Bosch, at ¶ 6. The approved method must be scrupulously followed, but “scrupulous compliance does not mean hypertechnical compliance.” Id. “An adequate foundation may be established by testimony that identifies the evidence and establishes the competency, materiality and relevancy of the evidence.” State v. Friedt, 2007 ND 108, ¶ 12, 735 N.W.2d 848 (quoting State v. Noorlun, 2005 ND 189, ¶ 15, 705 N.W.2d 819).

A

[¶ 8] Gietzen argues his blood test results were not properly admitted because Officer Bohn handled the testing kit's contents before giving the complete kit to the blood-drawing nurse. We reject this claim because Form 104 requires that both the nurse and the officer check a box verifying they “[u]sed an Intact Kit.” Both the nurse and the officer also must make written certification that the information they have provided on Form 104 is true and correct. Officer Bohn testified he ensured the kit was intact by inspecting the exterior and interior of the testing kit. We therefore conclude that, without evidence that the officer improperly handled contents of the kit, the officer's inspection of the kit's exterior and interior do not constitute deviation from scrupulous compliance with the approved method.

B

[¶ 9] Gietzen argues his blood sample was not properly admitted because Officer Bohn's testimony that the nurse checked the box indicating the tube was inverted several times was conclusory and did not provide an adequate foundation. He also argues Form 104 itself provides an insufficient foundation because the confrontation clause of the Sixth Amendment to the United States Constitution requires the opportunity to confront adverse witnesses. Gietzen's confrontation clause argument is addressed in Part III of this decision.

[¶ 10] The State submitted Form 104 which included a certified statement from the blood-drawing nurse that she “Drew Blood Into Tube and Inverted Several Times.” Section 39-20-07(10), N.D.C.C., states, “A signed statement from the individual medically qualified to draw the blood sample for testing as set forth in subsection 5 is prima facie evidence that the blood sample was properly drawn and no further foundation for the admission of this evidence may be required.” Subsection 5 of N.D.C.C. § 39-20-07 provides:

“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 director of the state crime laboratory or the director's designee, and by an individual possessing a certificate of qualification to administer the test issued by the director of the state crime laboratory or the director's designee. The director of the state crime laboratory or the director's designee is authorized to approve satisfactory devices and methods of chemical analysis and determine the qualifications of individuals to conduct such analysis, and shall issue a certificate to all qualified operators who exhibit the certificate upon demand of the person requested to take the chemical test.”

Read together, these two subsections permit admission of blood test results without further foundation if certain conditions are met. N.D.C.C. §§ 39-20-07(10), 39-20-07(5). Above we rejected Gietzen's claim that the officer's handling of the kit and contents meant the test was not fairly administered due to a failure to scrupulously follow the approved method. No other challenges were made to the foundational facts. We therefore conclude the district court did not err by admitting the test results in reliance on information provided in Form 104.

[¶ 11] Gietzen argues we must reach a contrary result because of our decision in Schwalk, 430 N.W.2d 317. There, we concluded that the State failed to establish a blood draw was made in compliance with the state toxicologist's approved method but that the State could have cured the foundational defect through testimony providing the missing information. Id. at 324. However, the problem in Schwalk was that the medical personnel drawing blood had no place on Form 104 to certify that the approved method had been followed. 430 N.W.2d at 323 (“Absent such a written certification that all of the State Toxicologist's directives for sample collection have been followed, Form 104 does not on its face establish fair administration of the test, and the State must therefore do so by other evidence.”). Here, the nurse certified on Form 104 that she performed the specified acts. Therefore, the proof lacking in Schwalk is present here.

[¶ 12] Gietzen also claims Schlosser v. N.D. Dep't of Transp. requires a different result in this case. 2009 ND 173, 775 N.W.2d 695. However, in Schlosser the State offered the arresting officer's conclusory testimony about fair administration of the blood test according to the approved method and did not introduce the completed Form 104. Id. at ¶ 13. Here, by contrast, a completed Form 104 and Officer Bohn's testimony were admitted. We therefore conclude our decision in Schlo...