State v. Rindy, Cr. N
| Decision Date | 21 November 1980 |
| Docket Number | Cr. N |
| Parties | STATE of North Dakota, Plaintiff and Appellee, v. Roger RINDY, Defendant and Appellant. o. 725. |
| Court | North Dakota Supreme Court |
Charles J. Gilje, State's Atty., and John E. Greenwood, Asst. State's Attorney, Jamestown, for plaintiff and appellee; argued by John E. Greenwood, Asst. State's Atty., Jamestown.
Garcia & Garcia, Devils Lake, for defendant and appellant; argued by Kirk Garcia, Devils Lake.
Appellant Rindy was convicted by a six-person jury of driving under the influence of intoxicating liquor, § 39-08-01, NDCC. He has appealed the conviction, and cites as grounds for reversal (1) the trial court's restriction of his cross-examination of an adverse witness, and (2) a statement by the prosecutor in front of the jury about information not admitted into evidence. We affirm.
On March 19, 1980, law enforcement officers stopped Rindy for speeding on Highway 52 north of Jamestown. Suspecting that he had been drinking and was unfit to drive, the officers transported Rindy to the police department in Jamestown where a breath-analysis test showed his blood alcohol level to be .20 percent.
A highway patrol officer, Sgt. Allen Blomquist, who was present when the breath-analysis test was administered but did not participate, gave the following testimony in response to questioning by the prosecutor:
Rindy's first argument is that by so testifying Sgt. Blomquist became an expert witness with regard to the functioning of the Breathalyzer machine. Rindy points also to Sgt. Blomquist's statement during cross-examination that he (Blomquist) was familiar with the operation of the unit. On this basis, counsel for Rindy attempted, through cross-examination of the sergeant, to show the possibility of a defect or malfunction in the type of unit used in Rindy's case, and to discredit Blomquist's expression that the breath-analysis result was in accord with Rindy's appearance. Without objecting to any specific question, the prosecutor objected several times to the scope of the questioning when it began to test Blomquist's knowledge about the technical working of a Breathalyzer. Rindy "excepted," and now contends that the court committed reversible error when it allowed him to continue but said,
Cross-examination is the primary mode of vindicating the Sixth Amendment guarantee of confrontation, and yet the scope of cross-examination is necessarily a matter involving the trial court's discretion. State v. Entze, 272 N.W.2d 292, 295, 297 (N.D. 1978); Rule 611, North Dakota Rules of Evidence. We have said that when a court forbids cross-examination as to material evidence a new trial will be ordered. State v. Hilling, 219 N.W.2d 164, 171 (N.D.1974).
We reject the assertion that Sgt. Blomquist, by his testimony, became an expert witness with regard to a Breathalyzer's operation. He did admit to a degree of experience and familiarity, but he expressly disclaimed knowledge of the scientific principles upon which the machine is based. However, even were we to view him as an expert, the comparison made by Blomquist, between Rindy's behavior and blood alcohol level as verified by the machine, required no expertise but simply an acquaintance with the rough percentage level of alcohol in the blood at which influence and intoxication ordinarily occur. Cross-examination aimed at discrediting Blomquist as an expert witness on Breathalyzers generally was irrelevant to his observation and was rightly curtailed by the court.
Nor was Blomquist an expert for the purpose of showing the possibility of a malfunction in the specific Breathalyzer used here. Blomquist professed no knowledge that would allow him to comment authoritatively on the subject. Blomquist was not the officer who ran the test on Rindy. 1 If counsel wished to challenge the validity of the scientific basis for relying upon Breathalyzer tests, a much more appropriate and effective way of proceeding would have been to summon, at no expense to the defendant, the state toxicologist, a qualified expert who certifies quarterly each breath-testing device in the State. See Section 39-20-07, NDCC. Because of its specific statutory approval and widespread use in the courts over a period of more than 20 years, a challenge of the use of Breathalyzer tests to determine blood alcohol levels would appear a most formidable task and would at least require the production of evidence from experts. See, e. g., Annot. 97 A.L.R.3d 294, and the numerous annotations cited therein. Also, 31A C.J.S. Evidence, § 76, and 29 Am.Jur.2d, Evidence, §§ 103-110. In any event, the trial court did allow Rindy's counsel to continue cross-examination of Blomquist regarding the actual unit at the Jamestown Police Department on March 19. The court's restriction pertained only to questions seeking to demonstrate Blomquist's lack of scientific knowledge. There was no denial of access to material evidence.
Rindy's second claim of error stems from a comment made by the prosecutor when counsel for Rindy was taking exception to the court's limitation of cross-examination:
Rindy contends the court erred by failing to strike the statement and not admonishing the jury to disregard it.
We must first determine whether error was in fact committed. Assuming the prosecutor's remark was...
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State v. Buckley, Cr. N
...of confrontation; however, the scope of cross-examination is necessarily a matter involving the trial court's discretion. State v. Rindy, 299 N.W.2d 783 (N.D.1980); State v. Entze, 272 N.W.2d 292 (N.D.1978). The scope of cross-examination is also limited by the subject matter of direct exam......
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