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State of North Dakota, Ex Rel. v. the Honorable Joshua B. Rustad

November 27, 2012

STATE OF NORTH DAKOTA, EX REL.
NATHAN KIRKE MADDEN, ASSISTANT STATE'S ATTORNEY, WILLIAMS COUNTY,
PETITIONER
v.
THE HONORABLE JOSHUA B. RUSTAD, JUDGE OF THE DISTRICT COURT, NORTHWEST JUDICIAL DISTRICT, AND JAMES DUANE CHRISTIANSON,
RESPONDENTS



The opinion of the court was delivered by: Maring, Justice.

N.D. Supreme CourtState, ex rel.

Madden v. Rustad,

2012 ND 242

This opinion is subject to petition for rehearing. [Go to Documents]

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Petition for Writ of Supervision. SUPERVISORY WRIT GRANTED.

Opinion of the Court by Maring, Justice.

[¶1] The State of North Dakota, through Williams County Assistant State's Attorney Nathan Kirke Madden, petitions this Court for a supervisory writ directing the district court to vacate a pretrial order requiring the State to produce the Director of the State Crime Laboratory at trial in the prosecution of James Christianson for driving while under the influence of alcohol. The State argues the district court misinterpreted N.D.R.Ev. 707 to require the State to produce the Director for Christianson's criminal trial. We exercise our supervisory jurisdiction and direct the district court to vacate its order, concluding this record does not establish the Director made any testimonial statements in an analytical report assessing Christianson's blood-alcohol content.

I

[¶2] Christianson was arrested for driving while under the influence of alcohol and submitted to a blood draw at a Williston hospital. The analytical report from the blood draw showed Christianson's blood-alcohol content was above the legal limit, and the State charged him with driving or being in actual physical control of a motor vehicle while under the influence of alcohol, or with a blood alcohol content above the legal limit. The State notified Christianson under N.D.R.Ev. 707(a) that it intended to introduce into evidence at trial the analytical report from his blood test, which had been certified by a forensic scientist at the State Crime Laboratory, Roberta Grieger-Nimmo. Christianson objected to the introduction of the analytical report under N.D.R.Ev. 707(b) and identified four witnesses to be produced at trial to testify about the report, including the specimen collector, the analyst, and the Director of the State Crime Laboratory. The State thereafter moved to allow the introduction of the analytical report without the testimony of the Director, Hope Olson.

[¶3] In a decision rendered before this Court's decisions in State, ex rel. Roseland v. Herauf, 2012 ND 151, 819 N.W.2d 546 and State v. Lutz, 2012 ND 156, 820 N.W.2d 111, the district court denied the State's motion to permit the admission into evidence of the analytical report without the testimony of Olson, ruling the State must produce Olson at trial under the plain language of N.D.R.Ev. 707:

First of all, with regard to the State's Motion for Admissibility of Lab Results Without the Testimony of Hope Olson, it is important to note that the cases cited by the State, Melendez-Diaz v. Massachusetts, 557 U.[S]. 305, 326-327 (2009) and State v. Gietzen, 2010 ND 8[]2, 786 N.W.2d 1, both predate North Dakota Rules of Evidence 707, which was adopted effective February 1, 2010, and amended March 1, 2011. While the Gietzen case was filed May 11, 2010, and modified June 30, 2010, trial was held on October 14, 2009, and that decision made no reference to, and did not rely on, Rule 707 in rendering its decision. As such, the Court has not been directed to any cases addressing the issue.

The Court finds that Rule 707 is clear in that if an analytical report is intended to be offered by the State, the Defendant must be notified in writing of its intent to introduce the report. The Defendant may object, and identify the name or job title of the witness to be produced to testify about the report at trial. If objection is made, the prosecutor must produce the person requested. (emphasis added) The Court finds that the plain language of Rule 707 requires that Hope Olson be required to testify as Defendant has identified her and as she was listed on the State's ...


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