State v. Gackle

2015 ND 271, 871 N.W.2d 589, 2015 N.D. LEXIS 288, 2015 WL 7737682
CourtSouth Dakota Supreme Court
DecidedDecember 1, 2015
DocketNo. 20150090
StatusPublished
Cited by4 cases

This text of 2015 ND 271 (State v. Gackle) is published on Counsel Stack Legal Research, covering South Dakota Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
State v. Gackle, 2015 ND 271, 871 N.W.2d 589, 2015 N.D. LEXIS 288, 2015 WL 7737682 (S.D. 2015).

Opinion

KAPSNER, Justice.

[¶ 1] A jury, found Robert Gackle guilty of driving while under the influence of intoxicating liquor.,. He appeals from the criminal judgment. We affirm.

I

[¶ 2] A McLean County Sheriffs Deputy pulled Gackle over after the deputy [591]*591observed Gackle speeding. The deputy-noticed Gackle appeared intoxicated and asked Gackle for permission to search his vehicle; Gackle consented. During the search, the deputy found a crushed beer can. The deputy then requested Gackle submit to field sobriety tests; Gackle complied. After Gackle performed the tests, the deputy placed him under arrest and drove him to the Turtle Lake Hospital. At the hospital, the deputy read Gackle the implied consent advisory and requested he submit to a blood draw. Gackle cohsented, a nurse drew his blood, and the deputy delivered the blood sample to the North Dakota State Crime Laboratory. A forensic scientist at the crime laboratory performed a chemical test on Gackle’s blood sample, and the test result was .21% alcohol by volume.

[¶ 3] The State charged Gackle with driving under the influence of intoxicating liquor. Gackle moved to suppress the test results, and the district court denied his motion. The State then made a motion in limine. In the motion, the State notified the court:

The state plans to offer the test through the chemist that conducted the test after the Court hears the foundation for the blood draw from the arresting officer and nurse. The state does not plan to go through the purely academic exercise of placing the documents related to blood testing found on the Attorney General’s website into evidence....
The state is attaching the documents in question to this motion. If they are needed in order for the Court to allow the jury to review the test results, the state will go through the exercise of admitting them at trial. However, the state does not intend to do so unless otherwise directed by the Court because the state believes the law does not require the jury have the exhibits before it.

During the hearing .on the motion in li-mine, the court preliminarily indicated:

THE COURT: Well, all right. I will give you how I tend to rule, and I’ll listen to any objections tomorrow. I’ve ruled- in the past that- if the lab technician and nurse and officer testify, that it is simply an evidentiary issue, and if somebody claims that this technician is not on the list or didn’t use the approved method, which I assume the person will testify they do, then you can make your objection that we don’t have the document into evidence. But I honestly don’t think that is a valid objection, but I will listen to it and I will make further ruling.
In my mind, all of those documents were for admitting evidence before we -had to call in the lab technician, in the sense it was a paper case and therefore every document had to come in so the documents then proved enough evidence to allow the officer to put in the lab results. We are not there anymore. We have to have a live witness. The defense has an opportunity to cross-examine that witness, to have that witness testify what that approved method is and what machines they used, et, cetera. That’s how I look at it, I guess I can’t tell you any more than that.

[If 4] The case went to trial. During the trial, the district court heard testimony from the deputy, the nurse who drew Gackle’s blood, and the forensic scientist who performed chemical testing on Gack-le’s blood sample. The State offered a report of Gackle’s blood test results into evidence. The results were accompanied by a sworn affidavit from the forensic scientist. The affidavit stated, among other things: “the analysis of the blood sample has been performed according to the meth[592]*592od and with a device approved by the State Toxicologist and I am certified by the State Toxicologist to conduct blood analysis....” Gackle objected to admission of the results; he argued:

MR. HOFFMAN: Okay. Your Honor, again, I would object to this document. It contains hearsay statements about approved method. He’s not a designee for purposes of 39-20-07(5). That foundation has not been established. So it’s hearsay and foundation objections to this document.
THE COURT: He just testified he ran the test and signed it. So he is the one who did the test, correct?
MR. HOFFMAN: I agree that he testified he’s the one that did the test, yes.
THE COURT: I want to make sure we’re getting beyond that. So your objection is—
MR. HOFFMAN: 39-20-07(5), it’s not been shown that the method used here in this case or the devices or the persons, even himself, have been approved by the director of the crime laboratory which is Hope Olson or Hope Olson’s designee. He states he’s a designee in this document. But he’s testified today that he’s only a designee for certifying true and correct copies. He’s not a designee for purposes of approving methods, devices, and persons.

The court admitted the test result over Gackle’s objection, and the jury found Gackle guilty. He appeals.

II

[¶ 5] Gackle argues the officer’s reading of the implied consent advisory coerced him into consenting to the blood-alcohol test, and thus his consent to the test was involuntary and the test unconstitutional. “This Court has previously determined, in the context of post-arrest chemical tests, that the state’s implied consent statute, which criminalizes refusal, is not coercive merely by the reading of the advisory.” State v. Nagel, 2014 ND 224, ¶ 12, 857 N.W.2d 374. See also State v. Harns, 2015 ND 45, ¶ 1, 861 N.W.2d 173; State v. Beylund, 2015 ND 27, ¶ 1, 861 N.W.2d 172; State v. Smith, 2014 ND 152, ¶ 21, 849 N.W.2d 599; McCoy v. N.D. Dep’t of Transp., 2014 ND 119, ¶ 24, 848 N.W.2d 659. In Smith, the defendant claimed his submission to the Intoxilyzer 8000 test was coerced because he was read the implied consent advisory. This Court found no evidence was offered, to show coercion, and therefore the district court did not err when it denied the defendant’s motion to suppress. Smith, at ¶ 21. In the present case, as in Smith, Gackle did not allege any facts that indicate his consent was coerced. Rather, he simply argues: “he only submitted to the test so he would not be charged with the crime of refusal and automatically be guilty of DUI. This is evidence of actual coercion and involuntariness.... ” Consequently, because the record provides no indication that Gackle’s consent was otherwise coerced, and reading of the advisory does not constitute per se coercion, the district court did not err.

Ill

[¶ 6] Gackle also argues the blood test results were inadmissible because the State did not show the director of the State Crime Laboratory or the director’s designee approved the methods, devices, or individuals involved in the administration of Gackle’s blood test. Thus, Gackle asserts, “[t]he State failed to put in any evidence to meet the foundation requirements of N.D.C.C. § 39-20-07(5).”

[¶ 7] We review a district court’s admission of evidence for an abuse of discretion. S.L.W. v. Huss, 2014 ND 169, ¶ 8, 852 N.W.2d 367. “A court abuses [593]

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Cite This Page — Counsel Stack

Bluebook (online)
2015 ND 271, 871 N.W.2d 589, 2015 N.D. LEXIS 288, 2015 WL 7737682, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-gackle-sd-2015.