Stаte of North Dakota, Plaintiff and Appellee v. Nicholas Paul Blaskowski, Defendant and Appellant
No. 20190002
IN THE SUPREME COURT STATE OF NORTH DAKOTA
Filed 7/11/19
2019 ND 192
Appeal from the District Court of Stutsman County, Southeast Judicial District, the Honorable Cherie L. Clark, Judge.
REVERSED.
Opinion of the Court by Jensen, Justice.
Joseph K. Nwoga, Assistant State’s Attorney, Jamestown, ND, for plaintiff and appellee.
Luke T. Heck, Fargo, ND, for defendant and appellant.
[¶1] Nicholas Blaskowski appeals from a criminal judgment entered after a jury verdict finding him guilty of driving under the influence under
I.
[¶2] On June 17, 2018, a North Dakota Highway Patrol Trooper stopped Blaskоwski for speeding and ultimately arrested him for driving under the influence. Blaskowski consented to a chemical breath test via an Intoxilyzer 8000 device. Thе test result indicated Blaskowski’s blood alcohol content was over the legal limit for operating a motor vehicle, he was charged with DUI, аnd a jury trial was held on November 26, 2018.
[¶3] At trial, Blaskowski objected to the introduction of the Intoxilyzer 8000 Test Record and Checklist, which documented the result оf the chemical breath test. Blaskowski argued the State did not establish the chemical breath test was fairly administered under
[¶4] Whether a chemical test was fаirly administered is a question of admissibility left to the district court’s discretion. State v. Van Zomeren, 2016 ND 98, ¶ 8, 879 N.W.2d 449. Evidentiary rulings are reviewed for an abuse of discretion. Id. at ¶ 7. “A district court abuses its discretion only if it acts in an arbitrary, unreasonable or unconscionable manner, if its decision is not the product of a rational mental process leading to a reasoned determination, or if it misinterprets or misapplies the law.” Rogers v. State, 2017 ND 271, ¶ 11, 903 N.W.2d 730.
[¶5] ”
[¶6] To facilitate compliance with
[¶7] If the evidence fails to show “scrupulous compliance” with the approved method for administering a chemical breath test, the evidentiary shortcut provided by
[¶8] This Court has previously reviewed a similar challenge to the results of a chemical breath test where the approved method for conducting the test required the device to “be installed by a field inspector prior to use.” Ell, 2016 ND 164, ¶¶ 15-22, 883 N.W.2d 464. In Ell, the Department of Transportation provided evidence the device had been inspected at the Office of the Attorney General, Crime Lab Division, but did not provide documentation the device had been instаlled by a field inspector at the location where the testing occurred. Id. at ¶ 20. The Department argued the inspection at the Crime Lab Division satisfied the approved method’s requirement that the device be installed by a field inspector prior to use and asserted the relocation of the device did not adversely impact the test result. Id. We noted it was “not clear from the approved method or from any other еvidence in the record that inspection of a testing device is the same as installation of the device,” and although the Department “established the location of the inspection of the device . . . it did not establish that the device was installed by a field inspector.” Id. In Ell, we held as follows:
Without evidentiary or testimonial proof of compliance with the approved method, the Department failed to make a prima facie shоwing the approved method was followed, and the foundational elements of N.D.C.C. § 39-20-07 for the evidentiary shortcut were not met. The Department did not present expert testimony to establish the test was fairly administered. Proper foundation for the Intoxilyzer test result was not laid. We conclude thе hearing officer misapplied the law and abused her discretion in admitting the breath test result.
[¶9] The State argues Ell is distinguishable from this case because in Ell, the device was moved from the Crime Lab Division to the lоcation of the testing. However, in Ell, this Court focused its review on compliance with the approved method, which required the device be instаlled by a field inspector prior to use, not whether the device had been moved subsequent to an inspection. Ell, 2016 ND 164, ¶ 21, 883 N.W.2d 464. We noted the record сontained no documentation evidencing the device had been installed by a field inspector as required by the approved method аnd specifically noted the approved method did not equate inspection and installation. Id. at ¶ 22. Without proof of compliance with thе approved method, we concluded the test could not be considered fairly administered under
[¶10] Here, just as in Ell, the approved method for the device requires installation by a field inspector prior to use. The record does not contain any documentation establishing the device was installed by a field inspector or expert testimony establishing the test was fairly administered. Without strict compliance with the approved method or expert testimony, the scientific accuracy of the test cannot be established. Ell, 2016 ND 164, ¶ 21, 883 N.W.2d 464; Lee v. N.D. Dep’t of Transp., 2004 ND 7, ¶ 12, 673 N.W.2d 245. We conclude the district court misapplied the law and abused its discretion by admitting into evidence a chemical breath test result lacking proof that it had been fairly administered.
III.
[¶11] The approved method for conducting the chemical test at issue in this case required the device be installed by a field inspector. Absent evidence of installation of the device by a field inspector, or expert testimony establishing the test was fairly administered, the test result was not admissible. We conclude the district court abused its discretion when it admitted the test result. We reverse the criminal judgment.
[¶12]
Jon J. Jensen
Lisa Fair McEvers
Daniel J. Crothers
Jerod E. Tufte
Gerald W. VandeWalle, C.J.