Appeal from the District Court of Burleigh County, South Central Judicial District, the Honorable Donald L. Jorgensen, Judge.
The opinion of the court was delivered by: Crothers, Justice.
[¶1] Shane Gietzen appeals the district court's order entering judgment on the jury's verdict finding Gietzen guilty of driving under the influence of alcohol with a blood-alcohol concentration of 0.08 percent or greater. We affirm.
[¶2] On May 23, 2009, Gietzen was arrested in Bismarck, North Dakota for driving under the influence of alcohol with a blood-alcohol concentration of 0.08 percent or greater. Gietzen was stopped by North Dakota State Highway Trooper Jeremiah Bohn, who testified Gietzen smelled of alcohol, had watery and bloodshot eyes and failed the horizontal gaze nystagmus field test. Officer Bohn transported Gietzen to a medical center where blood was drawn from Gietzen. Officer Bohn used a blood testing kit supplied by the North Dakota State Toxicologist, initially inspecting the exterior of the kit to ensure that it was sealed and that the expiration date had not passed. Officer Bohn next opened the kit and inspected its contents, ensuring the kit was intact. The kit was then passed to a registered nurse, who drew Gietzen's blood.
[¶3] Gietzen's initial blood draw failed to produce a measurable amount of blood due to a defective seal on the blood-draw apparatus. A second kit was obtained and inspected by Officer Bohn, and the kit was passed to the same registered nurse. After the nurse completed the second blood draw, she recorded her actions on Form 104 by checking boxes indicating she used an intact kit, observed powder in the vacutainer tube, used the disinfectant provided in the kit, used the needle provided in the kit, drew blood into the provided tube and inverted the tube several times. Officer Bohn also completed his portion of Form 104 by checking boxes indicating he used an intact kit, sealed the blood tube, placed the blood tube in a protective container, placed the protective container in a plastic bag, placed the plastic bag in a mailing box and sealed the box with tamper-evident tape. The sealed box containing Gietzen's blood sample was mailed to the State Crime Lab for analysis.
[¶4] At the State Crime Lab, Gietzen's blood sample was analyzed by a forensic scientist. The scientist determined the blood-alcohol concentration of the sample was 0.13 percent, and she reported her findings on Form 107. The Form 104 and Form 107 associated with Gietzen's arrest were analyzed by a deputy state toxicologist, who signed a document certifying the chemical analysis of Gietzen's blood sample was conducted according to the State's approved method for chemical tests.
[¶5] Gietzen was tried by a jury on October 14, 2009. The State called Officer Bohn and the forensic scientist as witnesses, and both were cross-examined by Gietzen. During Officer Bohn's testimony, the State attempted to introduce Form 104 and Form 107. Gietzen objected, arguing the forms violated his right to confront adverse witnesses because they contained testimony from the deputy state toxicologist and the registered nurse, neither of whom were present to testify. The district court sustained Gietzen's objection, but allowed the forms into evidence after a foundation was laid by the forensic scientist's testimony. The jury returned a verdict finding Gietzen guilty of driving under the influence of alcohol with a blood-alcohol concentration greater than 0.08 percent, and Gietzen timely filed this appeal.
[¶6] Gietzen argues this case should be reversed and an acquittal should be entered because the State failed to show scrupulous compliance with the approved method of the State Toxicologist when Officer Bohn handled the contents of the testing kit and when the nurse did not testify the drawn blood in the tube was inverted several times. We disagree.
[¶7] The purpose of N.D.C.C. § 39-20-07 regarding the performance and the interpretation of chemical tests in prosecutions for alcohol related driving offenses is to ease the requirements for the admissibility of chemical test results while assuring fair administration of the test upon which the results are based. See City of Bismarck v. Bosch, 2005 ND 12, ¶ 6, 691 N.W.2d 260, reh'g denied, cert. denied, 545 U.S. 1141 (2005). The requirements of N.D.C.C. § 39-20-07 must be complied with before Form 104 can be introduced into evidence. State v. Schwalk, 430 N.W.2d 317, 322 (N.D. 1988). The state toxicologist need not be called when it can be shown that the approved method was followed. Bosch, at ¶ 6. The approved method must be scrupulously followed, but "scrupulous compliance does not mean hypertechnical compliance." Id. "An adequate foundation may be established by testimony that identifies the evidence and establishes the competency, materiality, and relevancy of the evidence." State v. Friedt, 2007 ND 108, ¶ 12, 735 N.W.2d 848 (quoting State v. Noorlun, 2005 ND 189, ¶ 15, 705 N.W.2d 819.).
[¶8] Gietzen argues his blood test results were not properly admitted because Officer Bohn handled the testing kit's contents before giving the complete kit to the blood-drawing nurse. We reject this claim because Form 104 requires that both the nurse and the officer check a box verifying they "[u]sed an Intact Kit." Both the nurse and the officer also must make written certification that the information they have provided on Form 104 is true and correct. Officer Bohn testified he ensured the kit was intact by inspecting the exterior and interior of the testing kit. We therefore conclude that, without evidence that the officer improperly ...