Filed 8/27/20 by Clerk of Supreme Court

IN THE SUPREME COURT

STATE OF NORTH DAKOTA

2020 ND 188

City of West Fargo, Petitioner

v.

The Honorable Thomas R. Olson, 

Judge of District Court, 

East Central Judicial District, and 

Brady Duane Johnson, Respondents

No. 20200183

Petition for Writ of Supervision.

SUPERVISORY WRIT GRANTED.

Opinion of the Court by Jensen, Chief Justice.

Elle Molbert (argued) and Stephen R. Hanson (on brief), Assistant City 

Prosecutors, West Fargo, ND, for petitioner.

Mark A. Friese (argued) and Drew J. Hushka (appeared), Fargo, ND, for

respondent Brady Duane Johnson.
1

City of West Fargo v. Olson

No. 20200183

Jensen, Chief Justice.

[¶1] The City of West Fargo (the “City”) petitions this Court for a supervisory 

writ directing the district court to vacate a pretrial order requiring the City to 

produce at trial the individual (or the “Witness”) who initially inspected and 

reviewed the installation of the Intoxilyzer 8000 testing device used to 

administer a chemical breath test to Brady Johnson. We exercise our 

supervisory jurisdiction and vacate the district court order, concluding the 

Witness did not make any testimonial statements under the Confrontation 

Clause or Rule 707 of the North Dakota Rules of Evidence requiring the City 

to produce her at trial.

I

[¶2] The City charged Johnson with driving under the influence following a 

chemical breath test adminstered by law enforcement using an Intoxilyzer 

8000 testing device. Johnson objected to the introduction of the analytical 

report at trial, arguing cross-examination of the Witness is required under the 

Confrontation Clause and Rule 707 of the North Dakota Rules of Evidence.

According to the City and Johnson, the Witness initially inspected and 

reviewed the installation of the Intoxilyzer 8000 testing device which was used 

to administer Johnson’s breath test. She signed two documents entitled, 

“Intoxilyzer 8000 Initial Inspection” and “Intoxilyzer 8000 Installation and 

Repair Checkout.” The City responded to Johnson’s objection, arguing the 

documents signed by the Witness are not testimonial statements under the 

Confrontation Clause or Rule 707 as to require the City to produce the Witness

for trial. The district court ordered the City to produce the Witness at trial. 

The City petitions this Court for a supervisory writ directing the district court 

to vacate its order.

II

[¶3] Under N.D. Const. art. VI, § 2, and N.D.C.C. § 27-02-04, we may review 

a district court decision by exercising our supervisory authority. State ex rel. 
2

Roseland v. Herauf, 2012 ND 151, ¶ 3, 819 N.W.2d 546. We exercise our 

authority to issue supervisory writs rarely and cautiously on a case-by-case 

basis and only to rectify errors and prevent injustice in extraordinary cases 

when no adequate alternative remedy exists. Id. Our authority to issue a 

supervisory writ is discretionary. State ex rel. Madden v. Rustad, 2012 ND 242, 

¶ 5, 823 N.W.2d 767. We generally will not exercise our supervisory jurisdiction 

if the proper remedy is an appeal. Id.

[¶4] The City’s ability to appeal is limited. See N.D.C.C. § 29-28-07. If 

Johnson were found not guilty by a jury, the City could not appeal. See State 

v. Bernsdorf, 2010 ND 123, ¶ 5, 784 N.W.2d 126; State v. Deutscher, 2009 ND 

98, ¶ 7, 766 N.W.2d 442; City of Bismarck v. Uhden, 513 N.W.2d 373, 379 (N.D.

1994). If Johnson were found guilty by a jury, he would not likely raise the 

issue on appeal and the possibility that the City could raise it is remote. See 

State v. Holte, 2001 ND 133, ¶ 6, 631 N.W.2d 595; State v. Sabinash, 1998 ND 

32, ¶ 19, 574 N.W.2d 827. Further, the Court has been advised by the parties 

that the issue of whether the government is required to produce the Witness

at trial has been raised in multiple cases and one that will likely be raised 

again in the district courts. 

[¶5] In Herauf, 2012 ND 151, ¶¶ 4-5, we were asked to review whether the 

State was required to produce at trial the nurse who drew the defendant’s blood

in a DUI case. In Rustad, 2012 ND 242, ¶¶ 6-7, we were asked to review 

whether the State was required to produce the director of the State Crime 

Laboratory in a DUI case. We exercised our supervisory jurisdiction in both 

instances because the State lacked another adequate remedy. Because the 

City lacks another adequate remedy, we conclude this is an appropriate case 

to exercise our supervisory jurisdiction.

III

[¶6] The City argues it is not required to produce the Witness at trial under 

the Confrontation Clause and Rule 707 of the North Dakota Rules of Evidence

because the Witness’ statements are non-testimonial.
3

[¶7] The Confrontation Clause provides, “In all criminal prosecutions, the 

accused shall enjoy the right . . . to be confronted with the witnesses against 

him.” U.S. Const. amend. VI. 

The United States Supreme Court held this amendment prohibits 

the admission of testimonial hearsay against the accused, unless 

the witness is unavailable to testify and the accused previously 

had an opportunity to cross-examine the declarant. Crawford v. 

Washington, 541 U.S. 36, 68 (2004). The confrontation clause does 

not apply to non-testimonial hearsay. Id. See also Davis [v. 

Washington, 547 U.S. 813, 821 (2006)] (only testimonial 

statements cause the declarant to be a “witness” within the 

meaning of the Sixth Amendment).

State v. Duncan, 2011 ND 85, ¶ 13, 796 N.W.2d 672. The United States 

Supreme Court has outlined what qualifies as testimonial:

[E]x parte in-court testimony or its functional equivalent—that is, 

material such as affidavits, custodial examinations, prior 

testimony that the defendant was unable to cross-examine, or 

similar pretrial statements that declarants would reasonably 

expect to be used prosecutorially; extrajudicial statements . . . 

contained in formalized testimonial materials, such as affidavits, 

depositions, prior testimony, or confessions; statements that were 

made under circumstances which would lead an objective witness 

reasonably to believe that the statement would be available for use 

at a later trial.

Melendez-Diaz v. Massachusetts, 557 U.S. 305, 310 (2009) (quoting Crawford, 

541 U.S. at 51-52).

[¶8] In Melendez-Diaz, the United States Supreme Court noted the 

limitations of the Confrontation Clause: 

[W]e do not hold, and it is not the case, that anyone whose 

testimony may be relevant in establishing the chain of custody, 

authenticity of the sample, or accuracy of the testing device, must 

appear in person as part of the prosecution’s case. While . . . [i]t is 

the obligation of the prosecution to establish the chain of custody,
4

. . . this does not mean that everyone who laid hands on the 

evidence must be called.

557 U.S. at 311 n. 1; see also Herauf, 2012 ND 151, ¶ 9.

[¶9] Rule 707 of the North Dakota Rules of Evidence was adopted “to address 

confrontation issues involving the admissibility of analytical reports in North 

Dakota courts in response to Melendez-Diaz.” Rustad, 2012 ND 242, ¶ 13. Rule 

707 provides, in pertinent part:

(a) Notification to Defendant. If the prosecution intends to 

introduce an analytical report issued under N.D.C.C. chs. 19-03.1, 

19-03.2, 19-03.4, 20.1-13.1, 20.1-15, 39-06.2, or 39-20 in a criminal 

trial, it must notify the defendant or the defendant’s attorney in 

writing of its intent to introduce the report and must also serve a 

copy of the report on the defendant or the defendant’s attorney at 

least 60 days before the date set for the trial.

(b) Objection. At least 45 days before the date set for the trial, 

the defendant may object in writing to the introduction of the 

report and identify by name or job title a person who made a 

testimonial statement in the report to be produced to testify about 

the report at trial. If objection is made, the prosecutor must 

produce the person requested. If the witness is not available to 

testify, the court must grant a continuance.

N.D.R.Ev. 707(a)-(b) (emphasis added).

[¶10] “Rule 707, N.D.R.Ev., must be interpreted in light of N.D.C.C. § 39-20-

07, which governs the admission of analytical reports into evidence, because 

the rule and the statute are interconnected regarding analytical reports, as 

demonstrated by the language of the rule.” Herauf, 2012 ND 151, ¶ 11. “Section 

39-20-07, N.D.C.C., governs the admission of a chemical test result and allows 

the use of certified documents to establish the evidentiary foundation for the 

result.” State v. Blaskowski, 2019 ND 192, ¶ 5, 931 N.W.2d 226. The results of 

a chemical breath test must be received into evidence when it is shown: (1) the 

sample was properly obtained; (2) the test was fairly administered; (3) the test 

was performed according to methods and devices approved by the director of 

the state crime laboratory or the director’s designee; and (4) the test was 
5

performed by an authorized individual or by one certified by the director of the 

state crime laboratory or the director’s designee as qualified to perform it. 

N.D.C.C. § 39-20-07(5); see also Ell v. Dir., N.D. Dep’t of Transp., 2016 ND 164, 

¶ 18, 883 N.W.2d 464.

[¶11] In Herauf, the defendant was arrested for driving under the influence 

and submitted to a blood draw. 2012 ND 151, ¶ 2. The nurse conducting the 

blood draw provided a signed statement that the blood sample was properly 

drawn. Id. at ¶ 14. The defendant sent the State a subpoena to serve on the 

nurse, and the State opposed the request. Id. at ¶ 2. The district court 

concluded the State was required to produce the nurse at trial. Id. The majority 

of this Court held that the “signed statement contemplated under N.D.C.C. § 

39-20-07(10) is a testimonial statement.” Herauf, at ¶ 15. Subsection 10, since 

revised, provided, “A signed statement from the individual medically qualified 

to draw the blood sample for testing as set forth in subsection 5 is prima facie 

evidence that the blood sample was properly drawn and no further foundation 

for the admission of this evidence may be required.” N.D.C.C. § 39-20-07(10) 

(2012). The majority noted, “The signed statement is akin to an affidavit, which 

is testimonial . . . because it is a ‘solemn declaration or affirmation made for 

the purpose of establishing or proving’ that the blood sample was properly 

obtained.” Herauf, at ¶ 14. Because the statement was testimonial, the Court 

held that the State was required to produce the nurse at trial. Id. at ¶ 15.

[¶12] In State v. Lutz, we held the State was not required to produce the 

analyst who prepared the volatiles solution used in a chemical blood test. 2012 

ND 156, ¶ 14, 820 N.W.2d 111. We concluded that the analyst’s “expected 

testimony falls squarely within footnote one of Melendez-Diaz,” which relates 

to the chain of custody or the accuracy of the testing procedure. Id. at ¶ 8. We 

noted that the analyst prepared the volatiles solution three months before the 

defendant was charged with driving under the influence, concluding “[t]here is 

nothing in the record to suggest that the solution or the statement were 

prepared under circumstances that would lead [the analyst] or an objective 

witness to reasonably believe the solution or statement would be used for 

prosecutorial purposes at a later trial . . . .” Id. at ¶ 8.
6

[¶13] In Rustad, we held the State was not required to produce the director of 

the State Crime Laboratory at trial, concluding the director’s certification of 

the analytical report was not a testimonial statement, and the record did not 

establish the director conducted or otherwise participated in the blood 

analysis. 2012 ND 242, ¶¶ 17, 19. We explained, “The State need not produce 

designated persons for confrontation purposes if those persons do not make 

testimonial statements in analytical reports.” Id. at ¶ 19.

[¶14] The City asserts the signed statements from the Witness are nontestimonial for purposes of the Confrontation Clause. We agree. The Witness 

conducted the initial inspection of the Intoxilyzer 8000 in November 2018, as 

evidenced in the “Intoxilyzer 8000 Initial Inspection” report, which was 

approximately ten months before Johnson was charged with DUI. The Witness 

reviewed the “Intoxilyzer 8000 Installation and Repair Checkout” in December 

2018, approximately nine months prior to Johnson being charged. The record 

does not support a conclusion that she signed these reports in anticipation of 

their use at a trial.

[¶15] In Herauf, the nurse drew the blood sample and provided a signed 

statement that the sample was properly drawn to satisfy the requirements of 

N.D.C.C. § 39-20-07(10) (2012). Here, the Witness did not conduct Johnson’s 

chemical breath test or otherwise participate in its analysis. Further, N.D.C.C. 

§ 39-20-07(10) (2012) has since been revised since our holding in Herauf. There 

is no statutory language like the language that was in N.D.C.C. § 39-20-07(10) 

(2012), which would require the individual who initially inspected or reviewed 

the installation of the Intoxilyzer 8000 to make testimonial statements in the 

prima facie evidence established under the evidentiary shortcuts in N.D.C.C. 

§ 39-20-07. Nothing in the Witness’ expected testimony would prove the 

substance of the results of the analytical report of the chemical breath test, or 

that the breath test was properly administered. Thus, we distinguish Herauf 

from this case on the facts and the law. As with the volatiles solution analyst’s 

expected testimony in Lutz, the Witness’ statements are more appropriately

categorized as foundational, concerning “chain of custody, authenticity of the 

sample, or accuracy of the testing device,” as opposed to testimonial. Because 
7

the Witness’ statements are non-testimonial for purposes of the Confrontation 

Clause and Rule 707, the City is not required to produce the Witness at trial.

IV

[¶16] We exercise our supervisory jurisdiction and direct the district court to 

vacate its order.

[¶17] Jon J. Jensen, C.J. 

Daniel J. Crothers

Gerald W. VandeWalle

Lisa Fair McEvers

Jerod E. Tufte