870 N.W.2d 195
N.D.2015Background
- Officer stopped Hanson after observing a slow, wide turn and crossing the center line; officer administered field sobriety tests and arrested Hanson for DUI.
- At the jail the officer read the implied-consent advisory and requested an Intoxilyzer 8000 breath test; Hanson submitted a sample after saying he believed he had no choice.
- City charged Hanson with driving with a BAC ≥ .08% and driving under the influence; Hanson moved to suppress the Intoxilyzer evidence claiming the advisory coerced consent.
- At trial the State’s forensic scientist testified about Intoxilyzer procedures and—based on the test record—about the test’s validity; Hanson objected to foundation and hearsay grounds.
- The court excluded the Intoxilyzer test record for failure to satisfy N.D.C.C. § 39-20-07(5) and acquitted Hanson of the .08% count; the jury convicted him of driving under the influence.
- Hanson moved for a new trial; the district court denied the motion and Hanson appealed.
Issues
| Issue | Plaintiff's Argument (City) | Defendant's Argument (Hanson) | Held |
|---|---|---|---|
| Whether implied-consent advisory coerced Hanson’s consent to breath test, requiring suppression | Advisory and statutory framework are not coercive by mere reading; no other coercion shown | Reading of advisory coerced consent because Hanson believed he had no choice | Court: No coercion; denial of suppression affirmed |
| Whether district court erred in allowing forensic scientist to testify about Intoxilyzer procedures and Hanson’s test despite § 39-20-07(5) foundation not being laid | Expert testimony about procedures and validity is admissible even if statutory shortcut for admitting results wasn’t invoked | Testimony should be barred because State failed to show methods/device/operator were approved under § 39-20-07(5) | Court: No error; § 39-20-07(5) is a shortcut for admitting results but does not bar expert testimony about procedures |
| Whether expert could rely on an unadmitted Intoxilyzer record in giving opinion | Experts may base opinions on inadmissible facts/data when those are the kinds of data experts reasonably rely upon | Scientist’s use of an unadmitted record was improper and prejudicial (especially after acquittal on BAC count) | Court: Expert qualified; reliance on test record permitted under Rule 703; testimony was relevant at the time and not unduly prejudicial |
Key Cases Cited
- State v. Nagel, 857 N.W.2d 374 (N.D. 2014) (reading of implied-consent advisory alone is not coercive)
- State v. Beylund, 861 N.W.2d 172 (N.D. 2015) (same proposition on implied consent)
- State v. Smith, 849 N.W.2d 599 (N.D. 2014) (implied-consent advisory not coercive by itself)
- McCoy v. N.D. Dep’t of Transp., 848 N.W.2d 659 (N.D. 2014) (same)
- Painte v. Dir., Dep’t of Transp., 832 N.W.2d 319 (N.D. 2013) (§ 39-20-07(5) affords a statutory "shortcut" to admit chemical test results when scrupulous compliance is shown)
- Frank v. Dir., N.D. Dep’t of Transp., 849 N.W.2d 248 (N.D. 2014) (failure to lay § 39-20-07 foundation can require exclusion of Intoxilyzer results)
- Schlosser v. North Dakota Dep’t of Transp., 775 N.W.2d 695 (N.D. 2009) (discussing admission of blood alcohol test results under § 39-20-07)
- Anderson v. A.P.I. Co., 559 N.W.2d 204 (N.D. 1997) (trial court has wide discretion to qualify expert witnesses)
- Interest of J.M., 826 N.W.2d 315 (N.D. 2013) (experts may base opinions on otherwise inadmissible facts if experts in the field reasonably rely on them)