State v. Entze

• Decision Date: 28 November 1978
• Docket Number: Cr. N
• Parties: The STATE of North Dakota, Plaintiff and Appellee, v. Reuben R. ENTZE, Defendant and Appellant. o. 648.
• Court: North Dakota Supreme Court

Page 292

272 N.W.2d 292

The STATE of North Dakota, Plaintiff and Appellee, v. Reuben R. ENTZE, Defendant and Appellant.

Cr. No. 648.

Supreme Court of North Dakota.

Nov. 28, 1978.

Thomas M. Tuntland, Asst. State's Atty., Mandan, for plaintiff and appellee; submitted on the brief.

Freed, Dynes, Malloy & Reichert, Dickinson, for defendant and appellant; argued by Ronald A. Reichert, Dickinson.

ERICKSTAD, Chief Justice.

The defendant, Reuben R. Entze, was charged in Morton County with the crime of driving a motor vehicle while under the influence of intoxicating liquor. Upon a plea of not guilty, he was tried before a jury that returned a verdict of guilty on April 22, 1978. The county judge with increased jurisdiction in a document entitled Judgment of Conviction sentenced Entze to confinement in the county jail for 30 days, assessed a fine of $260, assessed costs of $15, and suspended the jail sentence upon certain conditions involving, among other things, treatment for alcoholism. Entze appeals from the judgment, contending that the trial court erred in prohibiting defense counsel from cross-examining a witness for the State upon his qualifications as a Breathalyzer operator. We affirm.

The narrow issue in this case is whether or not the trial court erred in prohibiting Entze's counsel from cross-examining the operator of the Breathalyzer as to his qualifications as a Breathalyzer operator. The defense counsel was not limited otherwise in his cross-examination of the Breathalyzer operator.

The issue arose after Joe Ellefson, the deputy sheriff of Morton County, testified concerning the circumstances of Entze's arrest on highway 10, approximately six miles west of Mandan. Ellefson testified that about 1:30 in the morning of the 22nd day of November, 1977, while on duty parked in his vehicle approximately four miles west of Mandan on highway 10, he observed the vehicle that Entze was driving cross the center line as it passed the point on the highway across from where Ellefson's vehicle was parked at an approach. He said that he then followed Entze's vehicle for about a mile during which he observed the vehicle cross the center line on two other occasions; that he then attempted to stop the vehicle by activating his portable red light, and when this did not seem successful he used his siren. The vehicle then left highway 10 and proceeded onto highway 25 in a northerly direction where it stopped. Ellefson stopped his vehicle behind Entze's vehicle and then asked Entze to do a number of field tests to determine whether or not he was under the influence, and when he decided that Entze was under the influence, he informed him of the charge and asked him to return to Mandan where police officer Al Fischer proceeded to give Entze the Breathalyzer test.

Pages 71 through 82 of the transcript involve the direct examination of Fischer by counsel for the State, during which a number of documents were received in evidence to establish, among other things, the qualifications of Fischer to operate the Breathalyzer. Fischer testified that to that date he had conducted the Breathalyzer examination about 136 times.

Pages 83 through 113 of the transcript involve Fischer's testimony, describing how he performed the 24 steps in operating the Breathalyzer, from checking out the machine in the beginning to clearing the machine in the end.

Exhibit 8 was received at the end of this testimony and consisted of a record of the various steps that were taken and the results of the test. The results of the test were that Entze's blood contained 0.13 percent by weight of alcohol.

After Exhibit 8 was received in evidence, counsel for the State asked Fischer if he had an opportunity to observe Entze and, if so, whether or not he had formed an opinion as to whether or not Entze was under the influence of intoxicating liquor. Fischer testified that he had an opportunity to observe him, that he had observed others under the influence, and that it was his opinion that Entze was under the influence of intoxicating liquor.

Counsel for Entze was then permitted to cross-examine Fischer, and his objection arises from the treatment he then received in conjunction with that effort. The cross-examination and the ruling of the court follows:

"Q Mr. Fischer, where did you take your training in breathalyzers?

"A In Bismarck.

"Q Where at?

"A It was given at it would be the Law Enforcement Academy.

"THE COURT: The Court is going to find that this line of questioning is irrelevant. His certificate has shown that he's certified as an operator, and it's the same thing as showing that he's qualified to operating it, and those questions to qualifications and training and so forth are irrelevant because the Statute allows that certificate to be offered in evidence.

"MR. REICHERT: Your Honor, do I understand your ruling to say that I can't cross-examine this officer about anything he did?

"THE COURT: I didn't say that. I didn't say that. With regard to his qualifications, the certificate shows that he's qualified, and that's been admitted in evidence. So in the area of qualifications to operate the breathalyzer, any questions would be irrelevant.

"MR. REICHERT: Your Honor, I will object to this ruling that under the law of North Dakota the jury is the final determiner of the admissibility or the introduction of any evidence. The jury still retains that province.

"THE COURT: The evidence has been admitted. Anything that you questions that you might have with procedures might go to the weight and whether he did it properly.

"MR. REICHERT: I would appreciate it if the Court could I'm lost. I cannot ask any questions about his qualifications as an operator?

"THE COURT: You can ask him about the procedures that he did doing this test. As to his training and history, the certificate indicates that he's qualified, and that establishes his qualifications; and any questions with regard to his training and so forth are irrelevant."

Pages 119 through the middle of page 127 of the transcript relate to the cross-examination of Fischer by Entze's counsel except for a page and a half of testimony which involves redirect examination by counsel for the State. During that period, Entze's counsel questioned Fischer unlimitedly as to the operation of the Breathalyzer.

What we have then is a very narrow issue which relates to the restriction the trial court placed upon counsel for Entze in denying him the privilege of cross-examining the Breathalyzer operator as to qualifications, but allowing him ample opportunity to cross-examine the operator as to the actual test.

In light of the fact that it is contended in oral argument before this court that defense counsel would have been able to show, had he been able to cross-examine the Breathalyzer operator as to his qualifications, that the operator had only received one and a half hours of instruction on the Breathalyzer, we think the following questions and answers are pertinent:

"Q Now, other than the steps that you run through here, do you know how the breathalyzer operates or what the principle behind it is?

"A I know how to operate it by using the check list.

"Q You don't know anything else about it?

"A I am just an operator, sir. I'm a certified operator."

The trial court, in restricting cross-examination, relied on Section 39-20-07(5), N.D.C.C. ¹ The court concluded that with the admission in evidence of the photocopy of the Breathalyzer operator's certificate and the certified copy of the list of certified chemical test operators, which included Fischer's name as one of the qualified operators, the issue over his qualifications as an operator was settled.

We believe that the court erred in that conclusion, but that his error was without prejudice, for the reason that defense counsel was able, through subsequent cross-examination, to gain a concession from the operator that in essence he did not know much about the machine, but that he knew how to operate it. Independent of the Breathalyzer test, the record discloses sufficient evidence to sustain the verdict.

We believe that the receipt in evidence of a certified copy of the operator's certificate and the certified copy of the list of certified chemical test operators, creates a prima facie case of the operator's proficiency, but that it does not create an irrebuttable presumption of the operator's proficiency, and that, accordingly, defense counsel should have been permitted to engage in a reasonable amount of cross-examination into the qualifications of the operator. We believe that receipt of such certification extends to the trial court greater latitude in determining the extent of such cross-examination, but that it does not permit the trial court to completely prohibit cross-examination as to the operator's qualifications. The right to cross-examine adverse witnesses is recognized as a concomitant part of the right to be confronted with the adverse witnesses. ²

We think it important, however, to consider another issue with which our court was concerned, but which counsel did not brief. That issue is whether or not it was necessary for defense counsel to make an offer of proof to preserve his right to raise this issue on appeal when the trial court prohibited him from cross-examining the Breathalyzer operator as to his qualifications.

An offer of proof is generally not necessary where the proof is sought to be elicited on cross-examination of an adverse witness or party. Uhlman v. Farm, Stock & Home Co., 126 Minn. 239, 148 N.W. 102, 103 (1914); 75 Am.Jur.2d Trial § 129 (1974).

It should be noted that there is authority to the contrary. Washington Nat. Ins. Co. v. Meeks, 249 Ark. 73, 458 S.W.2d 135 (1970); State v. Frazier, 101 R.I. 156, 221 A.2d 468 (1966); O'Brien v. Great N. R. Co., 145 Mont. 13, 400 P.2d 634 (1965).

We think it is significant what the Arkansas Supreme Court said in Meeks :

"It is clearly the majority rule that the requirement of...