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State v. Schwab7/16/2003
AFFIRMED.
[ ] Anna Marie Schwab appealed a judgment entered on a verdict finding her guilty of driving while under the influence of alcohol "and/or" with a blood alcohol concentration of at least .10 percent by weight. We conclude there were no reversible errors in amending the complaint and denying a continuance, or in the jury selection process. We affirm.
I.
[ ] At approximately 10:30 p.m., on May 18, 2002, Schwab was involved in a motor vehicle accident in Oliver County. The vehicle Schwab was operating collided with farm equipment being pulled by a tractor operated by Darrell Schulte, who was turning onto a highway while pulling an air seeder, grain cart and anhydrous ammonia tank. Schulte was cited for failure to yield the right of way. Schwab was issued a uniform complaint and summons citing N.D.C.C. § 39-08-01 and charging her with driving under the influence of alcohol or drugs. An analysis of blood drawn from Schwab by a nurse at a Bismarck hospital at 12:20 a.m., on May 19, 2002, revealed a blood alcohol concentration of .15 percent by weight.
[ ] After a trial on October 10, 2002, the jury returned a verdict finding Schwab guilty:
We . . . find the defendant, Anna Marie Schwab, GUILTY of the offense of:
X driving while under the influence of an alcoholic beverage
and/or
X driving at a time when she had a blood alcohol concentration of at least .10 by weight as measured by a chemical test performed within two hours after driving.
[ ] The trial court entered judgment of guilty and sentenced Schwab to 15 days in jail, suspended for 18 months, a fine of $350, with $100 suspended, a victim witness program fee of $25, and completion of a chemical dependency evaluation by a certified addiction counselor. Schwab on appeal contends the trial court's error in allowing amendment of the complaint and in denying a continuance, and an improper jury-selection process require reversal of her conviction.
II.
[ ] The uniform complaint and summons issued to Schwab cited N.D.C.C. § 39-08-01, but specifically charged only driving under the influence of alcohol or drugs. In an amended complaint, the prosecutor also charged driving with a blood alcohol content of .10 percent or greater. Schwab argues the trial court erred in allowing amendment of the complaint and in denying a continuance.
[ ] After jury selection on the day of trial, Schwab's attorney said: "I notice the instructions that the Court has talks about .10. Well, I have the ticket here and there is no charge of .10." Schwab's attorney told the court he had not received a motion to amend the complaint and moved "not to allow the amended complaint" and also to exclude evidence regarding that charge of driving with a blood alcohol concentration of .10 or greater. The trial court concluded there was no surprise and denied Schwab's motion.
[ ] After acknowledging that "I have been aware that there was a test in this case, a blood test in this case," Schwab's attorney requested a continuance:
f we're going to talk about the chemical test and anhydrous ammonia can affect the results of a chemical test, and, therefore, if the Court is going to allow this amendment, then I would ask for a continuance.
The trial court denied the request, noting "I see the arguments, but the record also would indicate that this isn't a complete surprise here today, so let's proceed."
[ ] Section 39-08-01(1), N.D.C.C., provides, in part:
A person may not drive or be in actual physical control of any vehicle upon a highway or upon public or private area
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