*1 justice placing the natural agree burden I cannot reason that a “[t]he ought it to rest. It where does not flow recipient partial secures recovery law, any fixed rule of but rather from against third-party tortfeasor is imma- terial_” principles justice, equity, and benevo- Reason is the any eq- core of result, purely equitable lence. It is a de- concept, ought uitable to direct the doctrines, pending, equitable like other application equitable of an doctrine like upon the facts and circumstances of each “subrogation.” particular case to call it forth. It is a In this majority of this court has adopted by equity device or invented to chosen to maintain the subrogation interest compel discharge the ultimate of a debt or of the Bureau over the injured interests of obligation him, good inwho conscience impaired by claimants an immunity not of ought ”); Hickenloop- Martin v. pay to it.’ making. their I hesitate to eq- call that er, 150, 1139, (1936), 90 Utah 59 P.2d suggests uitable regression because it (“In place, purely the first it is a equitable a totalitarian view of the govern- role of doctrine borrowed from the civil law.... reigned: ment that once King “The can do Bailey, Kent v. Says the court in 181 Iowa wrong,” no or at big wrong. least no See 489, 852, agree 164 N.W. 853: ‘The books District, Kitto v. Minot Park 224 N.W.2d subrogation is not founded on contract (N.D.1974). If justification there is or privity suretyship, or strict but is born result, it must the settlement equity, and results from the natural claimants, accepting partial damages justice placing the burden where it injuries their rather than litigating the ought to rest. The remedy depends upon responsibility full of the third-party wrong- principles justice, equity, and benev- doer, however fruitless that may ap- applied olence to be to the facts of the peared. Since the subrogation statute does particular case. equitable origin, It is of declare that the subrogation “bureau’s in- adopted compel discharge ultimate may terest by settlement,” not be reduced I obligation of a debt or good him who in hesitantly concur. ought ”) pay conscience it.' Thus, I join cannot opinion in an equitable
treats the concept “subroga-
tion” as an “entitlement.” Where a claim-
ant’s reduced recovery is attributable to his contributory negligence,
own as in Clary,
supra, Kelsh, supra, and in I have no
difficulty in enforcing the Bureau’s subro- gation agree “interest.” I that the claim- Dakota, STATE of North Plaintiff ant’s conduct should not affect the Bu- Appellee, subrogation But, reau’s interest. where claimant’s recovery reduced is ordained statute, prefer another I would to con- REIL, Alvin T. Defendant strue the together. two statutes N.D.C.C. Appellant. (“... construed, 1-02-07 the two shall be § Crim. No. 1210. possible, so given that effect ...”). provisions, both anticipate Supreme Court of North Dakota. passage of Ch. Laws, 1987 N.D. Sess. making significant June changes in tort law comparative liability fault and damages, may bring about a number
instances where subrogation the Bureau’s
interest weighed must be and construed impact of other enactments. See through
N.D.C.C. 32-03.2-01 § 32-03.2- § 12 (Supp.1987). *2 Firm,
Schoppert Town, Law New for de- appellant; argued and by fendant Thomas Schoppert. K.
ERICKSTAD, Chief Justice. T. appeals judgment Alvin Reil from the entered conviction the Williams Coun- 29, 1986, ty July on finding Court him guilty driving under the influence of 39-08-01, alcohol violation of Section N.D.C.C., following trial and also denying from the order motion for his new judgment trial. We reverse both the order remand for new trial. charged driving Reil was under the Bryon Klipfel influence Officer T. Highway North Dakota Patrol on Novem- 18,1984. ber patrol, Klip- While on Officer pickup traveling fel a observed on a front- age appeared him road to be trav- eling a low speed. at rate of He turned on frontage road and pickup followed the approximately one mile. While follow- ing pickup he saw it wander from the frontage shoulder the center of the road one and at time cross the center of the road. When the pickup turned off the road, he noticed that the vehicle’s brake lights working signal were not lights had not been activated. He turned emergency equipment patrol on the pickup stop. car and the to a came He approached pickup while he was identifying strong the driver he detected a odor of alcohol on the driver’s breath and eyes very saw that were bloodshot. physical After Reil failed two balance tests test, “ALERT” an he was taken to the Breathalyzer lav/ enforcement center for Klipfel, test. Breathalyzer oper- certified ator, administered the breath test and Reil’s percent test results showed .10 blood-alcohol content. test,
Following the breath
when Reil re-
quested
independent
an
test
blood
Officer
Klipfel
hospital
took Reil to the
for such a
subpoenaed
test. The State
the results of
that blood test from the State Toxicolo-
gist’s Office and at trial offered a certified
Furuseth,
(argued),
Peter H.
Atty.
States
copy of the results of that blood test. The
Williston,
plaintiff
appellee.
trial court admitted the results of the blood
provide
objection
over
that the
had
test
Reil’s
a reasonable assurance that the
custody
established
sample was withdrawn and tested in a
sample and his contention that the
view,
reliable manner. Under this
burden
State had the
ultimate
is whether sufficient
from him was the
blood drawn
same
presented
evidence was
to warrant a
Toxicologist.
examined
the State
finding that
the blood was in fact ex-
*3
1,1986,
August
On
Reil
a
moved for new
tracted from the defendant and was test-
arguing, among
things,
that his
trial
ed in a trustworthy manner.”
[Foot-
blood test was received as evidence without
notes omitted.]
16,
proper
September
foundation. On
Hanson,
v.
We believe that
State
345
1986, the trial court denied Reil’s motion
(N.D.1984),
N.W.2d 845
and the cases cited
for a new trial.
therein,1
to,2
subsequent
are consistent
appeal;
Reil raises three
how-
issues
with the second line
In Han-
authority.
of
ever,
dispositive
the
is
issue whether
not
son we concluded
provided
that the State
in admitting
the trial court erred
the result
sufficient foundation to admit the results
of
blood-alcohol test.
of Hanson’s blood-alcohol test where the
Currently,
split
authority
of
exists
arresting officer testified that Hanson’s
regarding
custody
the chain of
the
ad
sample
blood
was withdrawn from him un-
missibility of blood-alcohol tests as identi
very
der
clean and sterile conditions and
Court in Sulli
fied
Alaska Supreme
the
procedures
described the
in
utilized
han-
Municipality
Anchorage,
van v.
577
dling
mailing
the
sample
blood
the
1070,
(Alaska 1978):
P.2d
1072
Toxicologist.
light
office of
the
In
considering
“Courts
such chain of cus-
arresting
testimony,
the
officer’s
we con-
tody
split.
issues have
Some
strict-
cluded that there were sufficient indicia of
ly required that
link in
every
reliability
in
withdrawal of the blood
proven
evidence
before
be
the results
sample
permit
in that case
receipt
would be admissible. These cases ex-
the results
the blood-alcohol test. 345
press
complete
the concern
there
be
N.W.2d at 849.
specimen
evidence that the
properly
was
Hanson is
readily distinguishable
from
clearly
extracted and
as the
identified
officer,
arresting
this case in that the
al-
person being
blood of the
Other
tested.
though present
sample
when Reil’s blood
every
courts have held
step
need not
drawn, did
proven
certainty
testify
proce-
to an
was
as to
absolute
as
long
preserve
as the circumstances of the test
sample
dures used
the blood
Miller,
made,
In
we
analyzed
Hanson
cited Wanna v.
136
test was
was
(N.D.1965)
N.W.2d 563
v.
Erickson North
body
which
taken
was
of the de
Bureau,
Compensation
Dakota Workmen’s
123
delay
destroy
ceased. Mere
will not
the evi-
(N.D.1963),
recognizing
pos-
N.W.2d 292
as
"the
dentiary
object
proper
factor of an
if a
foun
sibility
sample may
that a blood
become con-
object
dation is laid. But before a material
laboratory
taminated before it reaches the
may be admitted in
it must
Erickson,
analysis.”
chemical
292,
In
N.W.2d
123
shown that
there has been no substantial
(N.D.1963),
we stated the foundational
issue,
change in its condition
since
time
requirement
admissibility
for the
of blood-alco-
require
which in this case would
that there be
hol test results as follows:
evidence
contents
.the
object
being
"When an
is
used in evidence
container
into which the blood had been
prove
to
previous
fact with
it
as
which
is related
of a
placed was the same substance that had been
time,
competent
it is not
evidence
body
withdrawn from the
of the deceased
object
unless it
first
that such
is
is
shown
and, except perhaps
clotting,
was
that it
substantially the same condition as it was at
substantially the same condition. Witt Ice &
being
the time which it
related. Gutman
152,
952;
Bedway,
Gas Co. v.
72 Ariz.
231 P.2d
Commission,
383,
App.
Industrial
Ohio
Keller,
White v.
188 Or.
nor did he mailing.3 distinguishable present Vetsch from the testimony case because of the nurse’s Vetsch, N.W.2d lacking in this case. (N.D.1985), acknowledged legisla- we in the amend- implicit tive directive 39-20-07(5) statutory Subsection lists the 39-20-07, N.D.C.C., enact- ment to Section requirements for the of chem- admissibility of ed to facilitate the chemical ical tests as follows: by commenting: tests “The results of analysis the chemical Dakota, legislature in “In North must be received evidence when it is explicitly prescribed that 39-20-07 has § shown that the ob- of the amount of alcohol ‘. fairly tained and the test was adminis- person’s ... in the blood at the time of tered, the test is shown to have alleged the act as shown a chemical performed according been to methods analysis blood ... admissible.’ *4 approved by and with devices the state emphasis subparagraph The in 5 is mani- toxicologist, pos- an individual analy- fest: ‘The results of the chemical sessing qualification a certificate of sis must be received evidence when it ’ properly is shown ... that it was ob- administer the test issued the state 26, fairly tained and administered. Rule toxicologist.” N.D.R.Crim.P., mandates that ‘all evi- 39-20-07(10) augments Subsection sub- dence shall be admitted which is admissi- 39-20-07(5) section with the directive that ’ State, ble under the statutes of this ... signed statement from the nurse or “[a] Thus, it for the court to was make the drawing medical technician the blood sam- preliminary determination of whether it ple testing as set forth in subsection 5 properly fairly was obtained and adminis- is facie evidence that the sam- blood statutory admissibility. tered for It was ple properly was drawn and no further for the relevancy to assess its foundation for the admission of such evi- weight.” However, required.” dence subsec- concluded Vetsch we that blood-alcohol 39-20-07(10) applicable tion is not in this test administered a nurse was admissi- disputing case because Reil is not allegations despite ble that the nurse used drawn. He is where, form, an outdated the nurse testified saying in effect that there is no evidence procedures at trial which she indicating that the blood that was preserve used to drawn draw the blood sam- ple complied had carefully preserved that she with all the was and sent to the testimony arresting going object. 3. The of the officer concern- "MR. SCHOPPERT: I’m ing Klipful, please my question preservation handling Mr. answer of the blood would you? you Did mail the blood? sample in this case is as follows: "THE WITNESS: No I did not. uh, Alright, Klipful "MR. SCHOPPERT: Mr. you “MR. SCHOPPERT: So don’t know for you, you did did not have a blood test taken mailed, a fact this is Mr. Reil’s blood that was you? in this did you? do No, "THE WITNESS: I did not. “THE WITNESS: No I don’t. you “MR. SCHOPPERT: And as far as know "MR. SCHOPPERT: Was this blood to be taken, this is Mr. Reil’s blood test that was is you? sent back to it not? “THE WITNESS: No. "THE WITNESS: That is correct. “MR. SCHOPPERT: You wanted one you "MR. SCHOPPERT: And its true that evening, you? test taken that didn’t drawn, present were not when this blood was “THE WITNESS: Yes. you? were “MR. SCHOPPERT: And that was the "THE WITNESS: Yes I breathalyzer was. test? you preserve “MR. “THE SCHOPPERT: Did WITNESS: That is correct. you “MR. SCHOPPERT: So no prior mailing? idea properly preserved prior this blood was mailing, “THE WITNESS: I did not mail it from the you? do hospital, no. “THE WITNESS: No."
103
Alston,
(5th
Toxicologist.
cert.
Cir.1972),
We believe
structions
de-
of
[statements]
signed
“A
statement
the nurse or
given.”
fendant were
medical
technician drawing the blood
testing
for
set
as
forth
subsec-
29-21-02, N.D.C.C.,
Section
allows
tion 5 is
facie evidence
judge
to
leeway
vary
trial
the order of trial
properly
drawn and no
as
cause
follows:
further foundation for the
admission
may
changed
“Order
trial
be
such
may
required.”
evidence
pleadings
cause.—When the state of the
it,
requires
any
or in
good
Astonishingly,
majority opinion
re-
reasons and in the
jects
sound discretion of
this evidence
single
without a
refer-
court,
argu-
the order of
trial
ence to our North Dakota Rules of Evi-
prescribed in
ment
section 29-21-01
dence. This is all
astonishing
the more
departed
from.”
(from
when the Federal
Rules
Evidence
drawn)
our NDREv are
are identi-
objection
as
Inasmuch
no
was made
quotation
fied in the
from Ballou v. Henri
Reil on the
record
the variation in the
Studios, Inc., supra, which correctly out-
procedure
usual
having
trial
lined the
approach
modern
to use of blood
beginning
prior
sworn at the
of the trial
test results under the Fed.R.Evid. Curi-
opening statements
in-
preliminary
ously,
admissible,
Ballou held blood test
structions, we conclude that this
issue
which the trial court had excluded “due to
before us. See State v.
regarding possible
concerns
breaks in the
Ronngren,
(N.D.1985);
1Q7 tional generally relevance a find- —would ing of fulfillment of the condition be Poyzer, A.W. POYZER and Bonita supported by ap- the evidence? This Appellees, Plaintiffs and proach generally reflects the Rules’ lib- preference eral for admission of evidence The AMENIA SEED AND GRAIN comports with the conclusions of ear- COMPANY, a North Dakota lier codifiers. Corporation, Defendant, ignore “This repudiate rule does not justifications the policy for the authenti- requirement. simply recognizes cation It Cargill Incorporated, a question Delaware proba- that where the one Corporation, Defendant credibility
tive force or necessarily it —as Appellant. always questions is with of authenticity identity competent is as as —the Myrtle POYZER, H. Plaintiff the court. The is constituted ex- Appellee, pressly purpose for the applying com- community mon sense and mores to dis- puted principal issues of fact where the The AMENIA SEED AND GRAIN always is almost one of credibil- COMPANY, a North Dakota ity. 104(b), 602, In 901(a) Rules and the Corporation, Defendant, second sentence of Rule 1008 the court is told admit juror where reasonable
might find for the on the issue Cargill Incorporated, a Delaware of relevancy. deciding whether to Corporation, Defendant and admit, issues credibility are decided Appellant. proponent. favor of the See discussion Id., in 111008(a)[02].” 901(a)[02] H at 901- Civil Nos. 11413. 21 to 22. Supreme Court of North Dakota. “Wigmore’s conclusion that con- mere will tents suffice un- authenticate June less the author would have known the details contrary to the federal
rules and unsound. per- Even if other
sons would have known the details of the
writing, it can be shown that under the unlikely
circumstances it they
would have written the letter. Proof
these circumstances and the contents writing can then sufficiently authen-
ticate the document. The common law
prejudice against self-authenticating doc-
uments is not carried over into the Feder-
al Rules.” 901(b)(4)[01] Id. If at 901-50
to 51.