State v. Stroh

2011 ND 139, 800 N.W.2d 276, 2011 N.D. LEXIS 144, 2011 WL 2698613
CourtNorth Dakota Supreme Court
DecidedJuly 13, 2011
DocketNo. 20100157
StatusPublished
Cited by11 cases

This text of 2011 ND 139 (State v. Stroh) is published on Counsel Stack Legal Research, covering North 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. Stroh, 2011 ND 139, 800 N.W.2d 276, 2011 N.D. LEXIS 144, 2011 WL 2698613 (N.D. 2011).

Opinion

KAPSNER, Justice.

[¶ 1] Joshua Stroh appeals from a criminal judgment entered after a jury found him guilty of driving under the influence of intoxicating liquor. Because the district court did not abuse its discretion by deciding that the Intoxilyzer test had been fairly administered and by admitting the test result into evidence, we affirm.

I

[¶ 2] On September 9, 2009, at 10:37 p.m., a state highway patrol officer observed a vehicle speeding and initiated a stop. Stroh was identified as the vehicle’s driver, and, noticing an odor of alcohol on Stroh’s breath, the officer administered field sobriety tests. Stroh failed the field tests and was arrested for driving under the influence. The officer drove Stroh to the jail, where the officer administered a chemical test on the Intoxilyzer 5000. The officer conducted the first test at 11:06 p.m., which returned a result of a 0.16 percent blood alcohol level. Stroh was subsequently charged with driving under the influence.

[¶ 3] In April 2010, a jury trial was held in the district court. During trial, the State offered into evidence the Intoxilyzer test record. Stroh’s trial counsel objected, arguing the officer had failed to comply with the State Toxicologist’s approved methods for administering the test. Specifically, Stroh argued that the officer had failed to ascertain the 20-minute waiting period before administering the test, dur[278]*278ing which time the test subject may not have anything to eat, drink, or smoke. Over Stroh’s objection, the court received the test record into evidence. The district court also denied Stroh’s N.D.R.Crim.P. 29 motions for judgment of acquittal after the State rested its case and at the close of evidence. The jury subsequently returned a verdict of guilty.

II

[¶ 4] The admissibility of an Intoxilyzer test result is governed by N.D.C.C. § 39-20-07(5). See Steinmeyer v. Dep’t of Transp., 2009 ND 126, ¶ 9, 768 N.W.2d 491; Buchholtz v. Director, North Dakota Dep’t of Transp., 2008 ND 53, ¶ 10, 746 N.W.2d 181. Section 39-20-07(5), N.D.C.C., in relevant part, states:

The results of the chemical analysis must be received in evidence when it is shown that the sample was properly obtained and the test was fairly administered, and if the test is shown to have been performed according to methods and with devices approved by the director of the state crime laboratory or the director’s designee, and by an individual possessing a certificate of qualification to administer the test issued by the director of the state crime laboratory or the director’s designee.

(Emphasis added.)

Fair administration of an Intoxi-lyzer test may be established by proof the State Toxicologist’s approved method for conducting the test has been “scrupulously followed.” Steinmeyer, at ¶ 10. “However, ‘scrupulous’ compliance does not mean ‘hypertechnical’ compliance.” Id. (internal quotation omitted).

Under N.D.C.C. § 39-20-07(5), the results of chemical analysis to determine blood alcohol content must be received in evidence if the test sample was properly obtained, and the test was fairly administered and shown to have been performed in accordance with methods and devices approved by the State Toxicologist. Henderson v. Director, N.D. Dep’t of Transp., 2002 ND 44, ¶ 16, 640 N.W.2d 714. Absent testimony by the State Toxicologist, a foundational requirement necessary to show fair administration of a breathalyzer test and admissibility of the test results is a showing that the test was administered in accordance with the approved methods filed with the clerk of the district court. Ringsaker v. Director, N.D. Dep’t of Transp., 1999 ND 127, ¶ 8, 596 N.W.2d 328. The purpose of N.D.C.C. § 39-20-07 is to ease the requirements for the admissibility of chemical test results while assuring that the test upon which the results are based is fairly administered. Lee v. North Dakota Dep’t of Transp., 2004 ND 7, ¶ 10, 673 N.W.2d 245.

City of Bismarck v. Bosch, 2005 ND 12, ¶ 6, 691 N.W.2d 260 (footnote omitted); see also State v. Gietzen, 2010 ND 82, ¶ 7, 786 N.W.2d 1.

[¶ 5] Sections 39-20-07(7), (8), and (10), N.D.C.C., are considered statutory exceptions to the hearsay rule. State v. Zimmerman, 516 N.W.2d 638, 641 (N.D.1994). Section 39-20-07(7), N.D.C.C., authorizes “the admission of these official records in lieu of the state toxicologist’s testimony describing the methods, devices, and operators” approved under N.D.C.C. § 39-20-07(5). Zimmerman, at 641 (citing State v. Jordheim, 508 N.W.2d 878, 881 (N.D.1993)).

The defendant may rebut the prosecution’s documentary foundation of fair administration by establishing either a deviation from approved procedures or a lack of fair administration despite compliance. Once the defendant has successfully rebutted the prosecution’s pri-[279]*279ma facie showing, the prosecution may present testimony to show fair administration despite defendant’s rebuttal.

State v. Erickson, 517 N.W.2d 646, 648-49 (N.D.1994) (citations omitted). However, “[w]here the prosecution uses both the rule-based (testimony) and statute-based (documents) methods of proving fair administration, the defendant cannot rebut this showing simply by establishing a deviation from approved procedures, if the testimony shows fair administration despite the deviation.” Zimmerman, at 642 n. 5.

[¶ 6] Thus, “[t]he results of a blood-alcohol test must be received into evidence if the test was fairly administered, and the fair administration of an Intoxilyzer test may be established by showing it was performed according to the State Toxicologist’s Approved Method.” State v. Lamb, 541 N.W.2d 457, 462-68 (N.D.1996) (citing N.D.C.C. § 39-20-07(5)). “The admissibility of a test result for alcohol concentration is a preliminary question left to the discretion of the trial court.” Lamb, at 463 (citing Erickson, 517 N.W.2d at 648); see also State v. Asbridge, 555 N.W.2d 571, 573 (N.D.1996) (“Whether a blood test was fairly administered is a preliminary question of admissibility left to the discretion of the trial judge.”); State v. Zink, 519 N.W.2d 581, 583 (N.D.1994); State v. Vogel, 467 N.W.2d 86, 91 (N.D.1991); N.D.R.Ev. 104(a) and 1008. Once test results have been admitted, the jury may assess their weight. Zink, at 583; Erickson, at 648. A district court abuses its discretion if the court acts in an arbitrary, unreasonable, or unconscionable manner, or if it misinterprets or misapplies the law. See State v. Thompson, 2010 ND 10, ¶ 10, 777 N.W.2d 617.

Ill

[¶ 7] Stroh argues the district court erred by allowing the Intoxilyzer test results as evidence because the State failed to establish fair administration of the test. Stroh contends the arresting officer’s testimony was impeached at trial.

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Cite This Page — Counsel Stack

Bluebook (online)
2011 ND 139, 800 N.W.2d 276, 2011 N.D. LEXIS 144, 2011 WL 2698613, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-stroh-nd-2011.