Kilber v. Grand Forks Public School District, 2012 ND 157

Lutz was charged with driving under the influence and underwent a blood draw performed by a nurse in Sept. 2011.
The State sought to introduce an analytical report under ND Rule 707; Lutz demanded production of the nurse, arresting officer, lab analysts (Kleinjan), volatiles preparer (Hentges), and evidence custodians and mail clerks.
The district court denied the motion in limine; Lutz entered a conditional guilty plea reserving appeal on the ruling.
The court’s decision involves the interplay between ND Rule 707, ND Century Code 39-20-07, and the Confrontation Clause.
The Supreme Court reverses and remands, holding that the State must produce the nurse who drew the blood, but not necessarily the volatiles preparer, mail carriers, or evidence custodians.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Must the State produce the nurse who drew the blood?	Lutz contends Rule 707 and confrontation require it.	Lutz argues the State need not call the nurse if proper foundation exists.	Yes; the nurse must be produced at trial.
Is the volatiles preparer (Hentges) required to testify under Rule 707?	Lutz argues Hentges must be produced as a witness.	State contends 707 does not require Hentges’ presence because the issue is chain of custody rather than the report itself.	No; not required to produce Hentges at trial.
Must mail carriers or evidence custodians be produced for confrontation purposes?	Lutz asserts they are required to establish chain of custody.	State need not produce them; their roles are too attenuated from the report.	No; not required to produce mail carriers or evidence custodians.
How do 707 and 39-20-07 interact in requiring production of the blood-draw witness?	Lutz asserts the combined rule requires production of the blood-draw witness to satisfy confrontation.	State argues compliance via other witnesses and statutory provisions suffices.	Rule 707, interpreted with 39-20-07, requires production of the blood-draw witness.

State ex rel. Roseland v. Herauf, 2012 ND 151 (ND Supreme Court 2012) (constitutional confrontation interpreted with Rule 707 and 39-20-07)
Melendez-Diaz v. Massachusetts, 557 U.S. 305 (U.S. Supreme Court 2009) (certificates of analysis are testimonial; confrontation required)
Bullcoming v. New Mexico, 131 S. Ct. 2705 (U.S. Supreme Court 2011) (certified reports testimonial; laboratory analyst must be produced)
State v. Schwab, 2008 ND 94 (N.D. 2008) (foundational requirements for introduction of chemical tests under ND law)
State v. Jordheim, 508 N.W.2d 878 (N.D. 1993) (prior framework for admission of blood-alcohol test evidence)
State v. Friedt, 2007 ND 108 (N.D. 2007) (foundational issues for chemical analysis and testimony)
State v. Gietzen, 2010 ND 82 (N.D. 2010) (analysis of foundation for chemical tests under ND law)
Bullcoming, 131 S. Ct. 2705 (2011) (see Bullcoming for confrontation implications of lab reports)