State v. Schimmel, Cr. N

• Decision Date: 30 June 1987
• Docket Number: Cr. N
• Parties: STATE of North Dakota, Plaintiff and Appellee, v. Roger SCHIMMEL, Defendant and Appellant. o. 1182.
• Court: North Dakota Supreme Court

Page 335

409 N.W.2d 335

STATE of North Dakota, Plaintiff and Appellee, v. Roger SCHIMMEL, Defendant and Appellant.

Cr. No. 1182.

Supreme Court of North Dakota.

June 30, 1987.

James Twomey, Asst. State's Atty., Fargo, for plaintiff and appellee.

William Kirschner & Associates, Fargo, for defendant and appellant.

GIERKE, Justice.

Roger Schimmel (Schimmel) appeals his jury trial conviction for driving a vehicle upon a highway with a blood-alcohol concentration of at least ten one-hundredths of one percent (.10%) by weight at the time of the performance of a chemical test and within two hours after driving, a violation of Sec. 39-08-01(1)(a), N.D.C.C. We affirm.

Schimmel alleges three errors occurred during his trial which mandate a reversal of his conviction and new trial. Schimmel asserts: (1) that the trial court erred in admitting into evidence testimony pertaining to an on-site A.L.E.R.T. chemical screening test proffered by the State of North Dakota; (2) that the trial court's reprimand of Schimmel's wife during his testimony at trial was unduly prejudicial; and (3) that improper comments made by the state's attorney during closing argument denied him of a fair trial.

Initially, Schimmel contends that because the probable cause leading to his arrest was never an issue at trial, the trial court erroneously admitted testimony into evidence surrounding his submission to an A.L.E.R.T. chemical screening test. ¹ Schimmel attempted to suppress the A.L.E.R.T. test evidence at a pretrial hearing and objected to its admission again at trial. The trial court admitted the A.L.E.R.T. test evidence over Schimmel's objections. Schimmel argues that admission of the A.L.E.R.T. screening test evidence is precluded by Sec. 39-20-14, N.D.C.C., when "probable cause" for arresting the defendant is not an issue at trial. We agree.

Section 39-20-14, N.D.C.C., provides:

"Screening tests. Any person who operates a motor vehicle upon the public highways of this state is deemed to have given consent to submit to an onsite screening test or tests of the person's breath for the purpose of estimating the alcohol content of the person's blood upon the request of a law enforcement officer who has reason to believe that the person committed a moving traffic violation or was involved in a traffic accident as a driver, and in conjunction with the violation or the accident the officer has, through the officer's observations, formulated an opinion that the person's body contains alcohol. A person may not be required to submit to a screening test or tests of breath while at a hospital as a patient if the medical practitioner in immediate charge of the person's case is not first notified of the proposal to make the requirement, or objects to the test or tests on the ground that such would be prejudicial to the proper care or treatment of the patient. The screening test or tests shall be performed by an enforcement officer certified as a chemical test operator by the state toxicologist and according to methods and with devices approved by the state toxicologist. The results of such screening test shall be used only for determining whether or not a further test shall be given under the provisions of section 39-20-01. The officer shall inform the person that refusal of the person to submit to a screening test will result in a revocation for up to three years of that person's driving privileges. If such person refuses to submit to such screening test or tests, none shall be given, but such refusal shall be sufficient cause to revoke such person's license or permit to drive in the same manner as provided in section 39-20-04, and a hearing as provided in section 39-20-05 and a judicial review as provided in section 39-20-06 shall be available. No provisions of this section shall supersede any provisions of chapter 39-20, nor shall any provision of chapter 39-20 be construed to supersede this section except as provided herein. For the purposes of this section, 'chemical test operator' means a person certified by the state toxicologist as qualified to perform analysis for alcohol in a person's blood, breath, saliva, or urine." [Emphasis added.]

Schimmel contends that pursuant to Sec. 39-20-14, N.D.C.C., and in accordance with this Court's holding in Asbridge v. North Dakota State Highway Commissioner, 291 N.W.2d 739 (N.D.1980), on-site chemical screening tests are permitted under the implied consent law only to ensure that probable cause exists which warrants the arrest of an individual for driving under the influence of intoxicating alcohol. Asbridge at 745.

The State counters that it was not error to admit the arresting officer's testimony regarding Schimmel's A.L.E.R.T. test because it was used for the purpose of explaining the officer's reasonableness in arresting Schimmel. In other words, while conceding that the A.L.E.R.T. chemical screening test is admissible only to the issue of probable cause (which was not contested by Schimmel in the instant case and, in any case, is not a proper jury inquiry), the State argues that the arresting officer's testimony on the screening test was admissible for the practical consideration "of the fairness of the actions of the police officer" leading up to Schimmel's arrest.

At trial, over Schimmel's objection, the county court admitted the evidence of the A.L.E.R.T. screening test, and Schimmel's failure thereof, which was elicited by the State through the testimony of the arresting officer. Schimmel asserts that the trial court erred in admitting the A.L.E.R.T. test results because probable cause for his arrest was never an issue at the trial. So prejudicial was the admission of this evidence, Schimmel argues, that it constituted reversible error and he should be granted a new trial.

Evidence is admissible if it is relevant. Rule 402, N.D.R.Ev. Relevant evidence is evidence having any tendency to make the existence of any fact at issue to the determination of the action more probable or less probable than it would have been without the evidence. Rule 401, N.D.R.Ev. State v. Hendrickson, 240 N.W.2d 846, 851 (N.D.1976). Evidence that is not relevant is not admissible. Rule 402, N.D.R.Ev. Whether or not evidence is relevant is a matter to be determined by the trial court. Rule 104(a), N.D.R.Ev. The trial court may have determined that the evidence of the A.L.E.R.T. test administered to Schimmel was relevant to an issue at trial. However, by statute, the only permissible purpose for using the results of an on-site chemical screening test is to determine whether or not a further test should be given. ² Section 39-20-14, N.D.C.C. The A.L.E.R.T. chemical screening test assists the law enforcement officer in establishing that probable cause exists which warrants an arrest for driving under the influence of intoxicating liquor. Asbridge at 745. "The ALERT instrument ... is an acceptable roadside screening device in North Dakota designed to assist law enforcement officers in determining if probable cause exists for a DUI arrest. The implied consent statute ... applies to such devices, but their results are otherwise inadmissible into evidence." Quick, "I Only Had 2 Beers!": A North Dakota Prosecutor's Manual for DUI Cases, 55-56 (Dec. 1984, rev. Oct.1986) (Emphasis added.)

The A.L.E.R.T. chemical screening test results should not have been presented to the jury since probable cause was not an issue at trial. This is especially true in light of the fact that the State had already elicited evidence surrounding the arresting officer's original stop of Schimmel for driving at night without his headlights and Schimmel's failure to pass two on-site field tests. Accordingly, it was error for the trial court to admit testimony regarding Schimmel's A.L.E.R.T. screening test into evidence.

When error occurs during a trial, our objective when reviewing its effect is to determine whether the error was so prejudicial that substantial injury occurred and a different decision would have resulted without the error. State v. Micko, 393 N.W.2d 741, 746 (N.D.1986). If no prejudice resulted, the error is considered harmless and shall be disregarded. Rule 52(a), N.D.R.Crim.P.; Micko at 746. After reviewing the record in this case, we find that the admission of the A.L.E.R.T. on-site chemical screening test did not affect the decision of the jury and is harmless error. We make this determination for two reasons.

Initially, we point out that Schimmel was arrested for driving with a blood-alcohol concentration of at least ten one-hundredths of one percent (.10%) by weight at the time of the performance of a chemical test and within two hours after driving, in violation of Sec. 39-08-01, N.D.C.C. Evidence presented to the jury revealed that Schimmel was given two blood-alcohol tests, both of which revealed results above .10%. In light of the two blood-alcohol tests presented to the jury, the prejudicial effect of the A.L.E.R.T. screening test results is negligible. But cf. State v. Deshaw, 404 N.W.2d 156 (Iowa 1987) (holding that the admission of testimony by a police officer revealing that a preliminary screening test of defendant's breath indicated the presence of alcohol was reversible error where the defendant was convicted of operating a motor vehicle while under the influence of alcohol).

Additionally, the trial court included a cautionary instruction in its jury instructions explaining that the only purpose of the A.L.E.R.T. test evidence was to allow the jury to fully understand the events surrounding Schimmel's arrest. The jury was cautioned that the A.L.E.R.T. test result was not to be used in their determination of Schimmel's blood-alcohol concentration. We reiterate that the A.L.E.R.T. screening test result was not properly presented to the jury, but have determined that under the weight of the evidence presented to the jury, coupled with the trial court's cautionary jury instruction, this error was harmless...