[HI] Austin Van- Zomeren appeals a criminal judgment after a jury found him guilty of driving with a blood alcohol concentration of at least .08 percent. We affirm, concluding the district court did not abuse its discretion" in admitting the results of Van Zomeren’s blood test.
I
[¶ 2] A Burleigh County sheriffs deputy stopped Van Zomeren for crossing the fog line while driving and arrested him for driving under the influence of alcohol after failing a preliminary breath test. The deputy read Van Zomeren the implied consent advisory and he agreed to take a blood test, which showed a blood alcohol content exceeding .08 percent.
[¶ 3] Before trial Van Zomeren moved to suppress the blood test, arguing he did not voluntarily consent to take the test. He argued the deputy’s reading of the implied consent advisory coerced him to take the test by stating he would be charged with a crime if he refused the test. The district court rejected his argument and denied the motion to suppress.
[¶ 4] At trial Van Zomeren objected to the admission of Form 104, the analytical report containing his blood test results. He argued the nurse drawing his blood did not follow the approved method for blood collection because after drawing the blood into a tube she shook the tube instead of inverting.it several times. He argued the State was required ,to show fair administration of the blood test through expert testimony. The State argued the blood test, was fairly administered and shaking the tube instead of inverting it did not affect the reliability or accuracy of the test. The district court allowed the analyst who tested the blood to testify that shaking instead of inverting would not affect the accuracy of the test results. After discussing the definitions of “invert” and “shake,” the court found expert testimony was. not necessary and admitted Form 104.
II
.[¶5] Van Zomeren argues the district court erred in denying his motion to suppress the blood test. He argues his consent was not voluntary because the deputy’s reading of the implied consent advisory, coerced him into -consenting to. the blood test. Van Zomeren acknowledges the issue he raises has.been decided' by this Court in
State v. Gackle,
III
[¶ 6] Van Zomeren argues the district court erred by receiving into evidence Form 104, which is the analytical report containing his blood test results. He ar
[¶7] A district court’s eviden-tiary ruling is reviewed under an abuse-of-discretion standard.
State v. Chase,
[¶8] Whether a blood test was fairly administered is a preliminary question of admissibility left to the district court’s discretion.
State v. Keller,
[¶ 9] Fair administration and compliance with the approved method can be proven through a completed and certified Form 104.
Filkowski,
[¶ 10] If the documentary evidence and testimony does not show scrupulous compliance with the methods approved by the director' of the state crime laboratory or the director’s designee, the evidentiary shortcut provided by N.D.C.C. § 39-20-07 cannot be used and fair administration of the test must be established through expert testimony.
Filkowski,
[¶ 11] One of Form 104’s checklist items to be completed by a blood specimen collector states: “Drew Blood Into Tube and Inverted Several Times.” The current version of Form 104 does not state the purpose of inverting the tube several times, however, earlier versions of Form 104 stated the purpose of inverting the tube several times is to prevent clotting by mixing the blood with a powder chemical inside the tube.
See McNamara v. North Dakota Dep’t of Transp.,
“All right. We'are outside the presence of the jury.- And Ms. Rice, Mr. Hoffman and Mr.- Van Zomeren are here. I wanted to go on the récord. State of North Dakota v. Keller indicates that ... it is up to the- court to decide whether or not the certified copy , [of Form 104] should be admitted. -And as I re-read Keller, the issue there ... as in here was whether or not the approved method was followed. The issue there was whether or not the officer had completed or had signed — dotted all the I’s and crossed all the T’s on Form 104. And he testified that although he didn’t put his name on there, it was his handwriting. And the ... Supreme Court indicated that whether a blood test was fairly administered is a preliminary question of admissibility left to the digression (sic) of the trial judge. That’s in paragraph 15. And talked about the state toxicologist has to approve the satisfactory devices and méthods, et cetera.
“In this case we don’t have an issue of whether or not [Form] 104 was properly filled out. We havé' an issue of whether or not the fact that the nurse shook the vile (sic) as opposed to inverted the vile (sic) had an affect on the outcome [of the test]. , I. have looked for definitions of invert versus shaken. Amd-I don’t find a definition in Black’s Law Dictionary. In Webster’s New World Compact Desk Dictionary and style guide .invert is described as to turn upside down, to reverse the order, position, direction, et cetera of. Shake is defined ns, to move quickly up and down back and forth, et cetera. To bring force, mix, et cetera, by brisk movements, to tremble or cause to tremble, to become or cause to be"come unsteady, unnerved, et cetera, as in greeting. The act of shaking.
“So what Mr. Hoffman is arguing is that the Court should recognize that there’s a significant difference or a significant enough difference between an invert and a shake that I should determine that the correct method was not used. And I don’t know — there’s no speed defined in invért. I don’t know that there needs to be any expert testimony to talk about invert versus’ shake. And so I wanted to go on the record to indicate I still am going to leave my ruling in place, but I — I wanted to' go on and indicate that I have looked: up a definition of invert and a definition of shake] and that’s what'I found. And I’m -using that definition in my determination here as to- whether or not I believe thé State would need expert testimony to counter that.”
[¶ 13] Van Zomeren argues this Court held in
McNamara,
[¶ 14] This case also differs from
Schwalk,
dealing with a failure to invert the blood tube at all.
[¶ 15] Here, a definition of “shake” used by the district court is “to mix.” There is no dispute the nurse’s shaking of the tube mixed the blood with the chemical inside the tube. The court found a significant difference did not exist between the definitions of “invert” and “shake” and did not require the State to prove fair administration of the test through expert testimony. The court’s reasoned explanation leads to a conclusion that the approved method was scrupulously complied with. At oral argument Van Zomeren’s attorney stated shaking can lead to the breakage of red blood cells, however, he did not submit evidence at trial showing shaking has a negative effect on blood test results. On this record we conclude the court did not abuse its discretion in concluding there was scrupulous compliance with the approved method and the court did not abuse its discretion in admitting Van Zomeren’s blood test results into evidence.
IV
[¶ 16] We affirm the criminal judgment.