Filed 7/11/19 by Clerk of Supreme Court

IN THE SUPREME COURT

STATE OF NORTH DAKOTA

2019 ND 192

State of North Dakota, Plaintiff and Appellee

v.

Nicholas Paul Blaskowski, Defendant and Appellant

No. 20190002

Appeal from the District Court of Stutsman County, Southeast Judicial District,

the Honorable Cherie L. Clark, Judge.

REVERSED.

Opinion of the Court by Jensen, Justice.

Joseph K. Nwoga, Assistant State’s Attorney, Jamestown, ND, for plaintiff and

appellee.

Luke T. Heck, Fargo, ND, for defendant and appellant.
State v. Blaskowski

No. 20190002

Jensen, Justice.

[¶1] Nicholas Blaskowski appeals from a criminal judgment entered after a jury

verdict finding him guilty of driving under the influence under N.D.C.C. § 39-08-

0l(l)(a). Blaskowski argues the district court erred in admitting the results of his

chemical breath test into evidence. Specifically, Blaskowski contends the State failed

to establish the chemical breath test was fairly administered under N.D.C.C. § 39-20-

07 because the State did not offer proof the device used to perform the chemical

breath test was installed by a field inspector prior to its use. We reverse the criminal

judgment.

I.

[¶2] On June 17, 2018, a North Dakota Highway Patrol Trooper stopped

Blaskowski for speeding and ultimately arrested him for driving under the influence.

Blaskowski consented to a chemical breath test via an Intoxilyzer 8000 device. The

test result indicated Blaskowski’s blood alcohol content was over the legal limit for

operating a motor vehicle, he was charged with DUI, and a jury trial was held on

November 26, 2018.

[¶3] At trial, Blaskowski objected to the introduction of the Intoxilyzer 8000 Test

Record and Checklist, which documented the result of the chemical breath test.

Blaskowski argued the State did not establish the chemical breath test was fairly

administered under N.D.C.C. § 39-20-07 because the State failed to establish the

device was installed by a field inspector prior to its use as provided in the approved

method for operating the device. The district court overruled Blaskowski’s objection

and admitted the test result. Blaskowski was found guilty of DUI under N.D.C.C. §

39-08-0l(l)(a).

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II.

[¶4] Whether a chemical test was fairly administered is a question of admissibility

left to the district court’s discretion. State v. Van Zomeren, 2016 ND 98, ¶ 8, 879

N.W.2d 449. Evidentiary rulings are reviewed for an abuse of discretion. Id. at ¶ 7. 

“A district court abuses its discretion only if it acts in an arbitrary, unreasonable or

unconscionable manner, if its decision is not the product of a rational mental process

leading to a reasoned determination, or if it misinterprets or misapplies the law.”

Rogers v. State, 2017 ND 271, ¶ 11, 903 N.W.2d 730.

[¶5] “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.” Ell v. Dir., N.D. Dep’t of Transp., 2016 ND 164, ¶ 17, 883 N.W.2d 464.

Section 39-20-07(5), N.D.C.C., eases the burden in laying an evidentiary foundation

for a chemical test result, provided that four foundational elements are met. Id. at ¶

18. One of these foundational elements requires the breath test to have been “fairly

administered.” Id. (citing Filkowski v. Dir., N.D. Dep’t of Transp., 2015 ND 104, ¶

12, 862 N.W.2d 785).

[¶6] To facilitate compliance with N.D.C.C. § 39-20-07 and the foundational

element requiring a test be fairly administered, the state toxicologist has established

approved methods for administering chemical breath tests. Thorsrud v. Dir., N.D.

Dep’t of Transp., 2012 ND 136, ¶ 8, 819 N.W.2d 483. The approved method for the

device used in this case was admitted at trial and provided, in part, that the device

“must be installed by a Field Inspector prior to use.” Blaskowski argues the State

failed to establish the device was installed by a field inspector prior to use.

[¶7] If the evidence fails to show “scrupulous compliance” with the approved

method for administering a chemical breath test, 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. Van Zomeren, 2016 ND 98, ¶ 10, 879 N.W.2d

449. While N.D.C.C. § 39-20-07(5) eases the burden of laying an evidentiary

foundation for a chemical test result, “[t]he scientific accuracy of the test cannot be

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established without expert testimony if there is not strict compliance with the

approved method” for administering the chemical test . Ell, 2016 ND 164, ¶ 19, 883

N.W.2d 464.

[¶8] This Court has previously reviewed a similar challenge to the results of a

chemical breath test where the approved method for conducting the test required the

device to “be installed by a field inspector prior to use.” Ell, 2016 ND 164, ¶¶ 15-22,

883 N.W.2d 464. In Ell, the Department of Transportation provided evidence the

device had been inspected at the Office of the Attorney General, Crime Lab Division,

but did not provide documentation the device had been installed by a field inspector

at the location where the testing occurred. Id. at ¶ 20. The Department argued the

inspection at the Crime Lab Division satisfied the approved method’s requirement that

the device be installed by a field inspector prior to use and asserted the relocation of

the device did not adversely impact the test result. Id. We noted it was “not clear

from the approved method or from any other evidence in the record that inspection

of a testing device is the same as installation of the device,” and although the

Department “established the location of the inspection of the device . . . it did not

establish that the device was installed by a field inspector.” Id. In Ell, we held as

follows:

Without evidentiary or testimonial proof of compliance with the

approved method, the Department failed to make a prima facie showing

the approved method was followed, and the foundational elements of

N.D.C.C. § 39-20-07 for the evidentiary shortcut were not met. The

Department did not present expert testimony to establish the test was

fairly administered. Proper foundation for the Intoxilyzer test result

was not laid. We conclude the hearing officer misapplied the law and

abused her discretion in admitting the breath test result.

Ell, at ¶ 22.

[¶9] The State argues Ell is distinguishable from this case because in Ell, the device

was moved from the Crime Lab Division to the location of the testing. However, in

Ell, this Court focused its review on compliance with the approved method, which

required the device be installed by a field inspector prior to use, not whether the

device had been moved subsequent to an inspection. Ell, 2016 ND 164, ¶ 21, 883

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N.W.2d 464. We noted the record contained no documentation evidencing the device

had been installed by a field inspector as required by the approved method and

specifically noted the approved method did not equate inspection and installation. Id.

at ¶ 22. Without proof of compliance with the approved method, we concluded the

test could not be considered fairly administered under N.D.C.C. § 39-20-07, proper

foundation was not laid, and the test result was inadmissible. Id.

[¶10] Here, just as in Ell, the approved method for the device requires installation by

a field inspector prior to use. The record does not contain any documentation

establishing the device was installed by a field inspector or expert testimony

establishing the test was fairly administered. Without strict compliance with the

approved method or expert testimony, the scientific accuracy of the test cannot be

established. Ell, 2016 ND 164, ¶ 21, 883 N.W.2d 464; Lee v. N.D. Dep’t of Transp.,

2004 ND 7, ¶ 12, 673 N.W.2d 245. We conclude the district court misapplied the law

and abused its discretion by admitting into evidence a chemical breath test result

lacking proof that it had been fairly administered.

III.

[¶11] The approved method for conducting the chemical test at issue in this case

required the device be installed by a field inspector. Absent evidence of installation

of the device by a field inspector, or expert testimony establishing the test was fairly

administered, the test result was not admissible. We conclude the district court

abused its discretion when it admitted the test result. We reverse the criminal

judgment.

[¶12] Jon J. Jensen

Lisa Fair McEvers

Daniel J. Crothers

Jerod E. Tufte

Gerald W. VandeWalle, C.J.

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