State v. Martin, 1141

• Decision Date: 23 July 1986
• Docket Number: No. 1141,1141
• Citation: 391 N.W.2d 611
• Parties: STATE of North Dakota, Plaintiff and Appellee, v. Kurtis P. MARTIN, Defendant and Appellant. Crim.
• Court: North Dakota Supreme Court

Page 611

391 N.W.2d 611

STATE of North Dakota, Plaintiff and Appellee, v. Kurtis P. MARTIN, Defendant and Appellant.

Crim. No. 1141.

Supreme Court of North Dakota.

July 23, 1986.

Tom Henning, Asst. States Atty., Dickinson, for plaintiff and appellee.

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

ERICKSTAD, Chief Justice.

Kurtis P. Martin, the defendant, appeals from a criminal judgment of conviction and sentence of the county court of Stark County entered following a jury verdict which convicted him of "DRIVING WHILE UNDER THE INFLUENCE OF ALCOHOL." We affirm.

On March 25, 1984, Martin was stopped by North Dakota Highway Patrolman Dean Franchuk while driving a motor vehicle on Interstate 94, east of Dickinson, North Dakota. After administering certain field sobriety tests, Officer Franchuk placed Martin under arrest for driving under the influence of alcohol. Martin was then taken to the Law Enforcement Center in Dickinson, where Officer Dana King, a certified Breathalyzer operator for the North Dakota Highway Patrol, conducted a Breathalyzer test on Martin. The result of the Breathalyzer test indicated that Martin had a .17 percent blood alcohol concentration.

Martin was charged with driving while under the influence of alcohol and driving while having a blood alcohol concentration of .10 percent or greater. Martin entered a plea of not guilty and the case was scheduled for trial. Two trials were held on the same charges. The first trial ended in a hung jury, the second in a verdict of guilty of driving while under the influence of alcohol.

In preparing for the first trial, Martin made a motion, on April 24, 1984, for discovery in which he requested the court to order the prosecution to furnish among other items:

"m. Assuming that simulator tests were performed before and after test given to defendant on Breathalyzer the test dates and the names of persons who performed these tests just before and just after the test given to defendant

"n. Assuming that the Breathalyzer was inspected, serviced, checked for accuracy and certified in proper working order, the dates and the names of the operators who did this just before and after the breath test was given to defendant on it"

The State then requested a hearing pursuant to Rule 16(d), N.D.R.Crim.P., for the purpose of reviewing Martin's discovery request. Following a hearing on May 15, 1984, before the county court, the substance of which does not appear in the record before our Court, the county court made the following order in granting Martin's motion for discovery:

"IT IS THEREFORE THE ORDER OF THE COURT that the State shall furnish copies of the Defendant's North Dakota driver's license abstract, case summary, influence report form, Form 106 and test records of the breathalyzer test to the Defendant if it has not already done so; the names of addresses of witness the State intends to call at trial and a list of the exhibits that the State intends to introduce."

The State responded to the Court's discovery order on March 15, 1985, by providing Martin with the names and addresses of the witnesses the State intended to call at the trial and with a copy of Martin's North Dakota driver's license abstract, case summary, influence report form, Form 106, and test records of the Breathalyzer test. Martin did not object to the State's return of discovery as being deficient or not in compliance with the court's order. He also did not request the court to expand its discovery order to include information not provided by the State.

Also in preparing for the first trial Martin's attorney issued a subpoena duces tecum to the Dickinson Police Department, directing the officer at the police department "who tested standard solution 258 for Machine S/N 001403 (simulator) on instrument S/N 2031 for the last inspection time prior to March 25, 1984, ... to appear before the County Court ... and there to testify ... [and] ... to bring all records concerning the certification of that standard solution and Breathalyzer machine S/N 2031 and Machine S/N 001404 (simulator) and present [them] at the time of such testimony."

A jury trial was held on March 11, 1985. During the course of this trial, the State attempted to introduce into evidence the results of the Breathalyzer test. Upon objection by Martin, the Court excluded the results of the Breathalyzer test, apparently on the basis of lack of foundation. Following deliberations, the jury was unable to reach a unanimous decision and was discharged on March 11, 1985. The case was scheduled for a second trial.

Nothing in the record pertaining to the second trial indicates that Martin renewed his motion for discovery or issued another subpoena duces tecum.

The second trial was held on October 28, 1985. At this trial, the State succeeded in having the results of the Breathalyzer admitted into evidence. During the course of the trial, Martin's attorney questioned Captain Henry Weber, an officer of the Dickinson Police Department who was responsible for caring for the Breathalyzer at the Law Enforcement Center in Dickinson, concerning certification records of the standard solution of the simulator, an auxiliary piece of equipment used in conjunction with the Breathalyzer. See, Schense v. Hjelle, 386 N.W.2d 888, 889 n. 1 (N.D.1986). Captain Weber testified that he did not have any records concerning the certification of the standard solution, that all records on the standard solution were kept by the State Toxicologist at his office in Fargo, and that no copy of those records were kept at the Dickinson Police Department. Martin then made a motion for mistrial on the basis that the State had not obeyed the subpoena duces tecum. The court, however, denied this motion on the basis that the subpoena duces tecum was issued by Martin's attorney for the first trial held on March 11, 1985, and had not been reissued for the second trial. Martin then made a motion for a continuance to have time to obtain the records concerning the test performed by Captain Weber on the standard solution of the simulator. This motion was denied.

Following deliberations, the jury found Martin guilty of the crime of "DRIVING WHILE UNDER THE INFLUENCE OF ALCOHOL."

On appeal, Martin raises four issues:

"1. What sanctions may be brought against the state for failure to comply with discovery?

"2. If stronger sanctions are not allowed, was the Defendant denied due process when a continuation was denied by the trial court to allow time for the police department to obtain the documents?

"3. Is the simulator a machine or device that needs to be separately tested and inspected and shown to be tested or inspected by the State Toxicologist?

"4. Is exclusion of any evidence regarding the breathalyzer proper when there has been no documentation provided by the state or testimony of the State Toxicologist regarding the simulator?"

Since the date that Martin filed his notice of appeal, we issued our decision in Schense v. Hjelle, 386 N.W.2d 888. Our decision in Schense necessitates a negative answer to issues number three and four quoted above. In Schense we found that the Legislature "by its use of the term 'devices' in the statute, did not intend to expand the certification and approval requirements of the State Toxicologist to include auxiliary equipment" ¹ such as the simulator. Schense v. Hjelle, 386 N.W.2d at 890. We concluded "that the term 'devices' as used in the statute refers to the testing equipment used to perform the chemical analysis of the subject sample, and not to auxiliary equipment or devices [such as the simulator] used during the testing procedure." 386 N.W.2d at 890. We also said that "[u]pon a proper record, we might be persuaded that an auxiliary device used in the testing sequence is of such a nature that, absent specific approval and certification of the device by the State Toxicologist, the test results would be so fraught with the possibility of error that the test could not be considered to be 'fairly administered' within the meaning of the statute." 386 N.W.2d at 891. As it was in Schense, "[t]he record in this case falls far short of such persuasion." 386 N.W.2d at 891. Even assuming that the simulator used in the present case was defective in some manner, which Martin has not established, Martin has failed to establish how a defect in the simulator could affect the test results of the Breathalyzer. See, Schense, 386 N.W.2d at 891. As he could have subpoenaed the State Toxicologist and all pertinent records, without cost to him, and did not do so, he is not in a strong position to assert that he has been prejudiced by the State's failure to produce records allegedly not known to exist by the state's attorney not kept by the officer subpoenaed, and not required to be filed with the clerk of court. ² Prior to amendments made by the Legislature in 1985, which are not relevant to the outcome of this case, Section 39-20-07(9), N.D.C.C. (1983), provided:

"9. Notwithstanding any statute or rule to the contrary, the defendant may subpoena, without cost to the defendant, the person who conducted the chemical analysis referred to in this section to testify at the trial on the issue of the amount of alcohol, drugs, or a combination thereof in the defendant's blood, breath, saliva, or urine at the time of the alleged act." Section 39-20-07(9), N.D.C.C.

Let us next consider the issue of what sanctions may be brought against the State for failure to comply with discovery. Rule 16(d)(2), N.D.R.Crim.P., provides in pertinent part:

"Failure to Comply With Request. If at any time during the course of the proceedings it is brought to the attention of the court that a party has failed to comply with this Rule or with an order issued pursuant to this Rule, the court may order that party to permit the discovery or inspection of materials not previously disclosed, grant a...