City of West Fargo v. Olson, 948 N.W.2d 15

West Fargo charged Brady Johnson with DUI after a chemical breath test using an Intoxilyzer 8000.
An individual (the “Witness”) performed an initial inspection and later reviewed the installation of the Intoxilyzer 8000, signing two inspection/checkout forms in Nov and Dec 2018.
Johnson objected to admission of the analytical report, arguing the Witness’s signed documents are testimonial and Rule 707 / the Confrontation Clause require the City to produce her for cross-examination.
The district court ordered the City to produce the Witness at trial. The City sought a supervisory writ from the North Dakota Supreme Court to vacate that order.
The Supreme Court exercised supervisory jurisdiction, concluding the Witness’s statements were non‑testimonial (inspections occurred many months before the charge and not in anticipation of trial) and vacated the district court’s production order.

Issue	City’s Argument	Johnson’s Argument	Held
Whether the City must produce the Witness who inspected/reviewed the Intoxilyzer 8000 under the Sixth Amendment Confrontation Clause.	Witness’s inspection reports are non‑testimonial (routine, done months before charging), so no confrontation right to demand her trial testimony.	The signed inspection/checkout documents are testimonial statements; Johnson is entitled to confront the declarant under Crawford/Melendez‑Diaz principles.	The Court held the Witness’s statements are non‑testimonial and the Confrontation Clause does not require production.
Whether Rule 707 (N.D.R.Ev.) requires production of the person identified as making a testimonial statement in an analytical report.	Rule 707 applies only to testimonial statements; these inspection entries were foundational and not the prima facie statutory certification that triggers production.	The inspection signatures are within the scope of Rule 707 and require the prosecution to produce the declarant for cross‑examination.	The Court held Rule 707 does not require production here because the Witness’s expected testimony is non‑testimonial and does not prove the substance or administration of the breath test.

Crawford v. Washington, 541 U.S. 36 (Confrontation Clause bars admission of testimonial hearsay absent unavailability and prior cross‑examination)
Davis v. Washington, 547 U.S. 813 (distinguishes testimonial vs. non‑testimonial statements)
Melendez‑Diaz v. Massachusetts, 557 U.S. 305 (certificates of analysis can be testimonial; footnote clarifies chain‑of‑custody participants need not always testify)
State v. Herauf, 2012 ND 151 (signed medical statement that blood was properly drawn was testimonial; State required to produce the nurse)
State v. Rustad, 2012 ND 242 (director’s certification not testimonial where director did not participate in testing)
State v. Lutz, 2012 ND 156 (analyst who prepared solution months earlier not required to testify; non‑testimonial foundational act)
State v. Blaskowski, 2019 ND 192 (statute governs admissibility of chemical test results and use of certified documents)