Appeal from the District Court of Walsh County, Northeast Judicial District, the Honorable M. Richard Geiger, Judge.
The opinion of the court was delivered by: Crothers, Justice.
N.D. Supreme CourtCity of Grafton v. Wosick, 2013 ND 74
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AFFIRMED. Opinion of the Court by Crothers, Justice.
City of Grafton v. WosickNo. 20120360
[¶1] William Florian Wosick appeals a criminal judgment entered after a jury found him guilty of driving under the influence of alcohol. Wosick argues the district court abused its discretion by admitting a blood analysis report and obvious error occurred because of lack of notice of the charge against him and the improper admission of testimony. We affirm.
[¶2] Grafton Police Department Officer Michael Gavere conducted a traffic stop of the vehicle Wosick was driving. After smelling alcohol emanating from the vehicle, Officer Gavere performed field sobriety tests on Wosick. Officer Gavere arrested Wosick for driving under the influence and transported him to the hospital for a blood draw to test Wosick's blood for intoxicants. Wosick was cited for driving a vehicle under the influence of alcohol in violation of N.D.C.C. § 39-08-01. Wosick waived his initial appearance before the Grafton Municipal Court and requested the case be transferred to the district court for a jury trial.
[¶3] The trial was held on August 16, 2012. The district court held a pretrial hearing the morning of the trial. The district court discussed the jury instructions with both parties, and Wosick did not object. Wosick moved to suppress the results of his blood test, arguing it was inadmissible under N.D.R.Ev. 707. Wosick argued the State failed to provide adequate notice as required by N.D.R.Ev. 707(a), though he did admit he received the blood test report. The district court denied Wosick's motion.
[¶4] The State called Officer Gavere, the nurse who performed the blood draw and the forensic scientist who performed the analysis of the blood test. During testimony, Wosick again objected to admission of the blood test report, which was overruled. Wosick called an acquaintance who testified she picked him up from the jail the night of the arrest and he did not appear intoxicated. The jury returned a verdict finding Wosick guilty of "driving a vehicle while under the influence of intoxicating liquor or with an alcohol content of .08% or greater." Wosick timely appealed.
[¶5] Wosick argues he was never personally informed of the charge against him and the State should have been limited to proceeding only on the charge of driving under the influence of intoxicating liquor. Section 39-08-01(1), N.D.C.C., provides, in part:
"1. A person may not drive or be in actual physical control of any vehicle upon a highway or upon public or private areas to which the public has a right of access for vehicular use in this state if any of the following apply: a. That person has an alcohol concentration of at least eight one-hundredths of one percent by weight at the time of the performance of a chemical test within two hours after the driving or being in actual physical control of a vehicle. b. That person is under the influence of intoxicating liquor." Wosick argues he lacked notice of being charged with violation of subsection (a). Subsections (a) and (b) address different conditions. State v. Schwab, 2003 ND 119, ¶ 8, 665 N.W.2d 52. Subsection (a) is violated by a blood alcohol concentration of .08 percent by weight "without regard to its influence or effect upon the driver." Id. (quotation omitted). ...