The opinion of the court was delivered by: VandeWalle, Chief Justice.
N.D. Supreme CourtState, ex rel. Roseland v. Herauf, 2012 ND 151
This opinion is subject to petition for rehearing. [Go to Documents]
[Download as WordPerfect] Concurring and Dissenting opinion filed.
Petition for Supervisory Writ. SUPERVISORY WRIT DENIED.
Opinion of the Court by VandeWalle, Chief Justice.
[¶1] The State of North Dakota, through Adams County State's Attorney Aaron Roseland, petitioned for a supervisory writ directing the district court to withdraw its pretrial order holding N.D.R.Ev. 707 required the State to produce at trial the person who drew Gwen Bohmbach's blood on the charge of driving under the influence. We conclude this is an appropriate case in which to exercise our supervisory jurisdiction. Because we hold N.D.R.Ev. 707, when construed with N.D.C.C. § 39-20-07, requires the State to produce at trial the individual who drew Bohmbach's blood, we deny the State's petition.
[¶2] Bohmbach was arrested for driving under the influence and submitted to a blood draw, which was conducted by a nurse. The State notified Bohmbach that it intended to introduce the analytical report at trial. Bohmbach sent the State a subpoena to serve on the nurse who drew her blood. The State moved to quash the subpoena, arguing N.D.R.Ev. 707 did not require it to produce the nurse who drew Bohmbach's blood because the nurse had no knowledge of the analytical report. The district court, after a hearing on the motion, concluded the State was required to produce the nurse at trial.
[¶3] This Court's authority to issue supervisory writs under N.D. Const. art. VI, § 2 and N.D.C.C. § 27-02-04 is a discretionary authority exercised on a case-by-case basis. State v. Holte, 2001 ND 133, ¶ 5, 631 N.W.2d 595. We exercise this discretionary authority rarely and cautiously and only to rectify errors and prevent injustice in extraordinary cases in which no adequate alternative remedy exists. Id. We generally will decline to exercise supervisory jurisdiction if the proper remedy is an appeal. Id.
[¶4] We conclude this is an appropriate case to exercise our supervisory jurisdiction because the State lacks another adequate remedy. The State's ability to appeal is limited. See N.D.C.C. § 29-28-07. If Bohmbach were found not guilty by a jury, the State could not appeal. See State v. Bernsdorf, 2010 ND 123, ¶ 5, 784 N.W.2d 126; State v. Deutscher, 2009 ND 98, ¶ 7, 766 N.W.2d 442; City of Bismarck v. Uhden, 513 N.W.2d 373, 379 (N.D. 1994). If Bohmbach were found guilty by a jury, she would not likely raise the issue on appeal and the possibility that the State could raise it is remote. See Holte, 2001 ND 133, ¶ 6, 631 N.W.2d 595; State v. Sabinash, 1998 ND 32, ¶ 19, 574 N.W.2d 827.
[¶5] Bohmbach and the North Dakota Association of Criminal Defense Lawyers, as amicus curiae, argue the State has two adequate alternative remedies. The first suggested remedy, which would have the State proceed to trial under N.D.C.C. § 39-08-01(1)(b) based solely on the officer's testimony, is inadequate because it limits the State to proceed under one theory of driving under the influence when generally it can present the jury with two separate theories. Under N.D.C.C. § 39-08-01(1)(a), the per se violation, a person can be convicted of driving under the influence based on the results of a chemical test. Section 39-08-01(1)(b), N.D.C.C., provides a person can be convicted of driving under the influence of intoxicating liquor regardless of the driver's blood alcohol level if the State proves the person drove a motor vehicle on a public way lacking "the clearness of intellect and control of himself that he would otherwise have." State v. Knowels, 2003 ND 180, ¶ 8, 671 N.W.2d 816 (quoting State v. Whitney, 377 N.W.2d 132, 133 (N.D. 1985)). The second suggested remedy, to produce the nurse at trial or depose her and offer her deposition in lieu of testimony, requires the State to comply with the district court order and, seemingly, reserve any challenge to the order for appeal. However, as discussed above, the State is unlikely to be able to raise the issue on appeal, making this remedy inadequate.
[¶6] The State argues the district court misinterpreted N.D.R.Ev. 707 to conclude the State was required to produce the nurse at trial. The State asserts the rule only requires it to produce those persons who have knowledge about the analytical report, and ...