State v. Jordheim

• Decision Date: 02 December 1993
• Docket Number: Cr. N
• Parties: STATE of North Dakota, Plaintiff and Appellee, v. Brian Stuart JORDHEIM, Defendant and Appellant. o. 930153.
• Court: North Dakota Supreme Court

Page 878

508 N.W.2d 878

STATE of North Dakota, Plaintiff and Appellee, v. Brian Stuart JORDHEIM, Defendant and Appellant.

Cr. No. 930153.

Supreme Court of North Dakota.

Dec. 2, 1993.

Ronald W. McBeth (argued), Asst. State's Atty., Wahpeton, for plaintiff and appellee.

Cash H. Aaland (argued), Fargo, for defendant and appellant.

MESCHKE, Justice.

Brian Jordheim appeals from a conviction for driving with an excessive blood-alcohol content. We affirm.

After midnight on October 6, 1992, Police Officer Ross Renner arrived at the scene of a two-car collision close to Wahpeton. The investigating officers found Jordheim in the driver's seat of one of the cars. He was injured but conscious, and the officers loaded him into an ambulance. Officer Renner accompanied Jordheim to St. Francis Medical Center in Breckenridge, Minnesota.

Renner testified that, enroute to the hospital, he noticed a strong odor of alcohol from Jordheim. Upon examination, he saw Jordheim's bloodshot and watery eyes. Based on these observations, the fact of an accident, and Jordheim's location in the car, Renner arrested Jordheim for driving under the influence of alcohol.

At the hospital, Jordheim consented to a blood test. Renner testified that he opened a sealed blood-test kit, read the directions on the enclosed Form 104, and instructed the laboratory technician on the steps directed in the form. Jordheim's blood was drawn into a vacutainer tube by technician Pam Ditch, who testified that she used the disinfectant and container from the kit, inverted the tube several times, and handed the filled container back to Renner. She completed and signed the form with the kit. Renner testified:

I received the container. I sealed it. I initialed the seal and everything. I filled out the rest of the proper paper work. I put it back in the canister. I sealed the canister.

Renner then took the canister back to the accident scene and handed it to a fellow officer. The next day, another local deputy delivered the canister to the State Toxicologist's office in Fargo.

Thomas Hoesly, a chemist in the State Toxicologist's office, testified that he received the canister directly from the deputy, opened the container, and broke the intact seal over the stopper on the blood tube. He then completed the check-in information on Form 104, followed the approved method of blood testing, and completed and signed Form 107 reporting a blood-alcohol content of 0.13%.

Over Jordheim's objection, the trial court admitted into evidence the report of the blood-alcohol test. After a trial without a jury, the court convicted Jordheim of driving under the influence of alcohol. Jordheim moved for a new trial. The court denied the motion. Jordheim appealed.

To begin, we narrow our review of Jordheim's conviction by several procedural rulings. First, Jordheim challenges for the first time in his appellate brief the jurisdiction of the Wahpeton City police to arrest him outside the city limits. The prosecution responds that, if this had been raised at trial, the State would have shown that these officers were properly deputized to act in the county. See State v. Beilke, 489 N.W.2d 589 (N.D.1992). We do not review questions raised for the first time on appeal.

In his motion for new trial, Jordheim renewed his objection to the evidentiary use of his blood-alcohol test, but did not contest probable cause for his arrest. A motion for new trial is not necessary for appellate review. State v. Heart, 334 N.W.2d 479 (N.D.1983). When a new trial is moved, however, "the party making such a motion is limited on appeal to a review of the grounds presented to the trial court." Andrews v. O'Hearn, 387 N.W.2d 716, 728 (N.D.1986). We explained:

See, e.g., Explanatory Comments to Rule 35, N.D.R.App.P., concerning the scope of appellate review, which states that "[t]he rule does not change existing appellate practice." This is true even though we have, by Rule 28, N.D.R.App.P., eliminated the assignment-of-errors requirement because the purpose of the rule derived from that requirement is to allow the lower court, in its decision on whether to grant a new trial, to review all alleged errors.

Andrews, 387 N.W.2d at 728 n. 18 (citations omitted). This long-standing rule applies equally to criminal appeals. State v. Empting, 21 N.D. 128, 128 N.W. 1119, 1121-22 (1910); State v. Glass, 29 N.D. 620, 151 N.W. 229, 230-31 (1915); State v. Krantz, 55 N.D. 683, 215 N.W. 157 (1927); State v. Potter, 60 N.D. 183, 233 N.W. 650, 653 (1930); State v. Colohan, 69 N.D. 316, 286 N.W. 888, 891 (1939). The question of probable cause to arrest Jordheim has not been preserved for review.

On the blood-alcohol test, Jordheim disputes that the prosecution proved fair administration by compliance with the State Toxicologist's approved methods, and argues that an adequate chain of custody over the blood sample was not proved. We conclude that the prosecution satisfied statutory requirements, and that the report of Jordheim's blood-alcohol test was properly received into evidence.

The evidentiary use of blood-alcohol test reports is regulated by NDCC 39-20-07. The statute purposely eases the burden of the prosecution in laying an evidentiary foundation for a blood-alcohol report. State v. Schwalk, 430 N.W.2d 317, 322 (N.D.1988). The statute balances procedural efficiency and scientific reliability by allowing scrupulously completed documents as evidence in lieu of lengthy testimony. NDREv 901(b)(10) endorses this legislative streamlining to authenticate alcohol-test evidence.

The report of a blood-test must be admitted under NDCC 39-20-07(8), even without the testimony of the chemist performing the test, if the proper foundation is developed. There are four main foundational elements in NDCC 39-20-07 that must be either documented or demonstrated for the admission of the test report. First, the sample must be properly obtained. Second, the blood test must be fairly administered. Third, the method and devices used to test the sample must be approved by the State Toxicologist. Finally, the blood test must be performed by an authorized person or by one certified by the State Toxicologist as qualified to perform it.

These foundational elements can be demonstrated by properly completed and certified documents alone. For a blood-alcohol test, the technician who drew the blood need not testify, if a written statement of the technician is introduced showing that the sample was drawn according to the methods approved by the State Toxicologist. NDCC 39-20-07(5) and (10). Fair administration, chain of custody, and compliance with the State Toxicologist's methods can be proved through a completed and certified Form 104. McNamara v. North Dakota Dep't of Transp., 500 N.W.2d 585, 589-90 (N.D.1993); State v. Schwalk, 430 N.W.2d at 322. The approved methods, devices, and persons certified to administer the test can be shown by introducing copies of records filed by the State Toxicologist and certified by the clerk of court. NDCC 39-20-07(7). See also Erickson v. Director, North Dakota Dep't of Transp., 507 N.W.2d 537 (N.D.1993) (inspection requirements of NDCC 39-20-07(6) do not apply to laboratory blood testing equipment approved under (5)). When properly completed, these documents furnish the foundation to admit the blood-test report. Under the statute, testimony disputing the facts contained in these documents, if properly completed, will generally affect the weight given the blood-test result and not its admissibility.

We review for the first time in this case the use of a revised Form 104 (6-92) to satisfy the foundational elements of NDCC 39-20-07. An earlier version of this form was held deficient because it lacked a place for the sample collector and the submitter to certify that the State Toxicologist's directions were followed. See State v. Reil, 409 N.W.2d 99, 103 n. 4 (N.D.1987). This deficiency was noted in later decisions by this court, too, but has been corrected in the current version of the form.

As revised, Form 104 has three sections that correspond to the conduct of the three people who normally participate in administering the blood test. The top half of the form includes the name of the person whose blood is drawn, and a list of directions for both the specimen collector and the recipient of the sample at the laboratory. The bottom half of the form contains a similar list for the specimen submitter. The submitter, who will usually be a police officer, is directed to retain this half of Form 104 in police records, undoubtedly for later evidentiary use. These lists on the form obviate the Reil deficiency by enabling the actors to complete, sign, and certify that the State Toxicologist's directions have been followed.

Given the detailed directions in Form 104 (6-92), it is difficult to imagine a case when certified compliance with them will not also furnish facial evidence that the sample was properly obtained and the test fairly administered, if the test was the result of a valid arrest or other precondition for its administration. See Wilhelmi v. Director of Dep't of Transp., 498 N.W.2d 150 (N.D.1993); State v. Hansen, 444 N.W.2d 330 (N.D.1989). Testimony about compliance with Form 104 is only necessary for the prosecution's case-in-chief if the documentary evidence does not satisfy all four elements. Although the prosecution did not offer complete documentation here, as it easily could have, the evidence as a whole shows compliance with the directions of Form 104, and the blood-alcohol test was properly admitted.

If the documentary evidence and the testimony of the participants in administering the test do not show scrupulous compliance with the methods approved by the State Toxicologist, the statutory mode of authentication cannot be used. In that case, the general rule of NDREv 901(a) applies and, a majority of this court holds, "the State must establish that there were sufficient indicia of...