                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
                                           3
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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