State v. Reil, 1210

• Decision Date: 30 June 1987
• Docket Number: No. 1210,1210
• Citation: 409 N.W.2d 99
• Parties: STATE of North Dakota, Plaintiff and Appellee, v. Alvin T. REIL, Defendant and Appellant. Crim.
• Court: North Dakota Supreme Court

Page 99

409 N.W.2d 99

STATE of North Dakota, Plaintiff and Appellee, v. Alvin T. REIL, Defendant and Appellant.

Crim. No. 1210.

Supreme Court of North Dakota.

June 30, 1987.

Peter H. Furuseth, States Atty. (argued), Williston, for plaintiff and appellee.

Schoppert Law Firm, New Town, for defendant and appellant; argued by Thomas K. Schoppert.

ERICKSTAD, Chief Justice.

Alvin T. Reil appeals from the judgment of conviction entered by the Williams County Court on July 29, 1986, finding him guilty of driving under the influence of alcohol in violation of Section 39-08-01, N.D.C.C., following trial by jury and also from the order denying his motion for new trial. We reverse both the judgment and the order and remand for new trial.

Reil was charged with driving under the influence by Officer Bryon T. Klipfel of the North Dakota Highway Patrol on November 18, 1984. While on patrol, Officer Klipfel observed a pickup traveling on a frontage road which appeared to him to be traveling at a low rate of speed. He turned on the frontage road and followed the pickup for approximately one mile. While following the pickup he saw it wander from the shoulder to the center of the frontage road and at one time cross the center of the road. When the pickup turned off the road, he noticed that the vehicle's brake lights were not working and that the signal lights had not been activated. He turned on the emergency equipment on the patrol car and the pickup came to a stop. He approached the pickup and while he was identifying the driver he detected a strong odor of alcohol on the driver's breath and saw that his eyes were very bloodshot. After Reil failed two physical balance tests and an "ALERT" test, he was taken to the law enforcement center for a Breathalyzer test. Klipfel, a certified Breathalyzer operator, administered the breath test and Reil's test results showed a .10 percent blood-alcohol content.

Following the breath test, when Reil requested an independent blood test Officer Klipfel took Reil to the hospital for such a test. The State subpoenaed the results of that blood test from the State Toxicologist's Office and at trial offered a certified copy of the results of that blood test. The trial court admitted the results of the blood test over Reil's objection that the State had not established the chain of custody of the blood sample and his contention that the State had the burden of showing that the blood drawn from him was the same blood examined by the State Toxicologist.

On August 1, 1986, Reil moved for a new trial arguing, among other things, that his blood test was received as evidence without proper foundation. On September 16, 1986, the trial court denied Reil's motion for a new trial.

Reil raises three issues on appeal; however, the dispositive issue is whether or not the trial court erred in admitting the result of his blood-alcohol test.

Currently, a split of authority exists regarding the chain of custody for the admissibility of blood-alcohol tests as identified by the Alaska Supreme Court in Sullivan v. Municipality of Anchorage, 577 P.2d 1070, 1072 (Alaska 1978):

"Courts considering such chain of custody issues have split. Some have strictly required that every link in the chain of evidence be proven before the results would be admissible. These cases express the concern that there be complete evidence that the specimen was properly extracted and clearly identified as the blood of the person being tested. Other courts have held that every step need not be proven to an absolute certainty as long as the circumstances of the test provide a reasonable assurance that the sample was withdrawn and tested in a reliable manner. Under this view, the ultimate question is whether sufficient evidence was presented to warrant a finding that the blood was in fact extracted from the defendant and was tested in a trustworthy manner." [Footnotes omitted.]

We believe that State v. Hanson, 345 N.W.2d 845 (N.D.1984), and the cases cited therein, ¹ and subsequent to, ² are consistent with the second line of authority. In Hanson we concluded that the State provided sufficient foundation to admit the results of Hanson's blood-alcohol test where the arresting officer testified that Hanson's blood sample was withdrawn from him under very clean and sterile conditions and described the procedures utilized in handling and mailing the blood sample to the office of the State Toxicologist. In light of the arresting officer's testimony, we concluded that there were sufficient indicia of reliability in the withdrawal of the blood sample in that case to permit the receipt of the results of the blood-alcohol test. 345 N.W.2d at 849.

Hanson is readily distinguishable from this case in that the arresting officer, although present when Reil's blood sample was drawn, did not testify as to the procedures used to preserve the blood sample nor did he testify as to its handling and mailing. ³

In State v. Vetsch, 368 N.W.2d 547, 550 (N.D.1985), we acknowledged the legislative directive implicit in the 1983 amendment to Section 39-20-07, N.D.C.C., enacted to facilitate the admissibility of chemical tests by commenting:

"In North Dakota, the legislature in Sec. 39-20-07 has explicitly prescribed that '... evidence of the amount of alcohol ... in the person's blood at the time of the act alleged as shown by a chemical analysis of the blood ... is admissible.' The emphasis in subparagraph 5 is manifest: 'The results of the chemical analysis must be received in evidence when it is shown ...' that it was properly obtained and fairly administered. Rule 26, N.D.R.Crim.P., mandates that 'all evidence shall be admitted which is admissible under the statutes of this State, ...' Thus, it was for the court to make the preliminary determination of whether it was properly obtained and fairly administered for statutory admissibility. It was for the jury to assess its relevancy and weight."

In Vetsch we concluded that a blood-alcohol test administered by a nurse was admissible despite allegations that the nurse used an outdated form, where the nurse testified at trial about the procedures which she used to draw and preserve the blood sample and that she had complied with all the provisions of the revised form. We find Vetsch distinguishable from the present case because of the nurse's testimony which is lacking in this case.

Subsection 39-20-07(5) lists the statutory requirements for the admissibility of chemical tests as follows:

"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 state toxicologist, and by an individual possessing a certificate of qualification to administer the test issued by the state toxicologist."

Subsection 39-20-07(10) augments subsection 39-20-07(5) with the directive that "[a] signed statement from the nurse or medical technician drawing 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 such evidence may be required." However, subsection 39-20-07(10) is not applicable in this case because Reil is not disputing that the blood sample was properly drawn. He is saying in effect that there is no evidence indicating that the blood that was drawn was carefully preserved and sent to the State Toxicologist. We believe that the State did fail in this respect. ⁴

The general rule regarding the admissibility of blood-alcohol test results is aptly stated by the United States Court of Appeals for the Fifth Circuit in Ballou v. Henri Studios, Inc., 656 F.2d 1147, 1154-55 (5th Cir.1981), as follows:

"It is firmly established in this Circuit that the question whether the proponent of evidence has proved an adequate chain of custody goes to the weight rather than the admissibility of the evidence, and is thus reserved for the jury. United States v. Henderson, 588 F.2d 157, 160 (5th Cir.1979), cert. denied, 440 U.S. 975, 99 S.Ct. 1544, 59 L.Ed.2d 794 (1979); United States v. White, 569 F.2d 263, 266 (5th Cir.1978), cert. denied, 439 U.S. 848, 99 S.Ct. 148, 58 L.Ed.2d 149 (1978); United States v. Ellis, 547 F.2d 863, 868 (5th Cir.1977). Likewise, the issue of alteration, contamination or adulteration of the evidence is a question for the jury once the proponent of the evidence makes a threshold showing that reasonable precautions were taken against the risk of alteration, contamination or adulteration. See United States v. Lane, 591 F.2d 961 (D.C.Cir.1979); United States v. Alston, 460 F.2d 48 (5th Cir.1972), cert. denied, 409 U.S. 871, 93 S.Ct. 200, 34 L.Ed.2d 122 (1972). The proponent of the evidence 'need not rule out every conceivable chance that somehow the identity or character of the evidence underwent change.... So long as the court is persuaded that as a matter of normal likelihood the evidence has been adequately safeguarded, the jury should be permitted to consider and assess it in light of the surrounding circumstances.' Lane, 591 F.2d at 962-63. Under Fed.R.Evid. 901, once the proponent of the evidence meets the threshold requirement of showing that 'in reasonable probability the article has not been changed in any important respect from its original condition,' United States v. Albert, 595 F.2d 283, 290 (5th Cir.1979), cert. denied, 444 U.S. 963, 100 S.Ct. 448, 62 L.Ed.2d 375 (1979), any doubts raised concerning the possibility of alteration or contamination of the evidence go to the weight and not the admissibility of the evidence."

To determine whether or not the trial court abused its discretion when it admitted certified copies of Reil's blood-alcohol test result obtained from the office of the State Toxicologist, we need to examine the record to ascertain whether or not the State made "a...