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State v. Lynch11/2/2001
ed nurse" may withdraw blood. However, that provision was amended before passage. The legislature's removal of qualified technician from the statute means technicians are no longer statutorily qualified to draw blood. Section 39-20-02 is clear and unambiguous on its face and demonstrates the statute requires the state toxicologist to issue a list of approved designations medically qualified to draw blood.
[ ] The State argues N.D.C.C. § 39-20-07 governs the admissibility of blood test results, not N.D.C.C. § 39-20-02. While we agree N.D.C.C. § 39-20-07 governs the admissibility of blood test results, the State must show the individual who drew the blood is medically qualified under N.D.C.C. § 39-20-02.
[ ] In addition to amending N.D.C.C. § 39-20-02, S.B. 2345 also amended N.D.C.C. § 39-20-07(10). See 1999 N.D. Sess. Laws ch. 358, § 8. Before the 1999 amendment, subsection 10 stated, " signed statement from the nurse or medical technician drawing 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 such evidence may be required." 1999 N.D. Sess. Laws ch. 358. The 1999 amendment removed "nurse or medical technician" and inserted "individual medically qualified." Id. A medical technician's signature on Form 104 is no longer prima facie evidence that the sample was properly drawn.
[ ] The results of a blood-alcohol test must be admitted into evidence in an alcohol-related proceeding if the test was fairly administered according to the state toxicologist's approved procedures. State v. Asbridge, 555 N.W.2d 571, 573 (N.D. 1996). The State has the burden to prove the blood test was collected following the proper procedures set forth by the state toxicologist. See N.D.C.C. § 39-20-07(5). In State v. Jordheim, 508 N.W.2d 878, 882 (N.D. 1993), we stated:
If the documentary evidence and the testimony of the participants in administering the test do not show scrupulous compliance with the methods approved by the State Toxicologist, the statutory mode of authentication cannot be used. In that case, the general rule of NDREv 901(a) applies and, a majority of this court holds, "the State must establish that there were sufficient indicia of reliability in the collection and submission of the blood sample" through expert testimony that establishes fair administration of the test. State v. Schwalk, 430 N.W.2d [317, 324 (N.D. 1988)]; State v. Nygaard, 426 N.W.2d 547, 549 (N.D. 1988).
[ ] The list of designations to draw blood approved by the state toxicologist under N.D.C.C. § 39-20-02 is governed by N.D.C.C. § 39-20-07(5) and should be routinely admitted under N.D.C.C. § 39-20-07(7). In the present case, no evidence was presented indicating Swearson was qualified to draw blood. The State introduced the blood test results through Knight. The State failed to introduce any evidence from the state toxicologist indicating Swearson was medically qualified to draw the blood sample. Because the State failed to show the blood sample was properly obtained, the blood test results should not have been received as evidence. See State v. Barnick, 477 N.W.2d 200, 202 (N.D. 1991) (citing N.D.C.C. § 39-20-07(5) and (10)).
[ ] The trial court erred by admitting the blood-test results into evidence without proper foundation, therefore, the judgment of conviction is reversed, and the matter is remanded for a new trial.
[ ]William A. Neumann
Mary Muehlen Maring
Carol Ronning Kapsner
Dale V. Sandstrom
Gerald W. VandeWalle, C.J.
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