879 N.W.2d 449
N.D.2016Background
- Deputy stopped Austin Van Zomeren for crossing the fog line, he failed a PBT, was read the implied consent advisory, and agreed to a blood test showing BAC > .08%.
- Van Zomeren moved to suppress the blood test, claiming his consent was coerced because the advisory warned of criminal consequences for refusal. District court denied suppression.
- At trial Van Zomeren objected to admission of Form 104 (the certified analytical report), arguing the nurse shook the blood tube instead of inverting it as required by the approved method. He argued expert testimony was necessary to prove fair administration.
- The State offered testimony from the analyst that shaking would not affect test accuracy; the district court reviewed dictionary definitions of “invert” and “shake,” found no meaningful difference for purposes of mixing, and admitted Form 104 without requiring expert proof of fair administration.
- The Supreme Court of North Dakota affirmed, holding the district court did not abuse its discretion in (1) denying suppression of the blood test and (2) admitting Form 104 because the approved method was scrupulously complied with despite the nurse’s shaking of the tube.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Voluntariness of consent to blood test | State: implied consent advisory is valid; prior North Dakota precedent controls | Van Zomeren: advisory coerced consent by threatening criminal charge for refusal | Court: follows State v. Gackle and related precedent; denied suppression; no new ruling on constitutionality required |
| Admissibility of blood test report (Form 104) | State: Form 104 and analyst testimony show shaking did not affect accuracy; certified report satisfies §39-20-07 foundations | Van Zomeren: nurse shook tube instead of inverting; this deviated from approved method and requires expert proof of fair administration | Court: district court did not abuse discretion; shaking adequately mixed anticoagulant and thus scrupulous compliance shown; Form 104 admitted |
Key Cases Cited
- State v. Gackle, 871 N.W.2d 589 (N.D. 2015) (upholding analysis of implied consent advisories)
- State v. Birchfield, 858 N.W.2d 302 (N.D. 2015) (addressing legal challenges to implied consent rules; cert. granted by U.S. Supreme Court)
- Filkowski v. North Dakota Dep’t of Transp., 862 N.W.2d 785 (N.D. 2015) (explaining §39-20-07 foundations and use of Form 104)
- State v. Keller, 833 N.W.2d 486 (N.D. 2013) (trial court determines preliminary question whether approved method was followed)
- McNamara v. North Dakota Dep’t of Transp., 500 N.W.2d 585 (N.D. 1993) (discussing inverting vial to mix chemical and prevent clotting)
- State v. Schwalk, 430 N.W.2d 317 (N.D. 1988) (failure to invert at all can undermine fair administration)