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State v. Filkowski

Supreme Court of North Dakota

August 6, 2015

State of North Dakota, Plaintiff and Appellee
v.
Michael Dale Filkowski, Defendant and Appellant

Appeal from the District Court of McKenzie County, Northwest Judicial District, the Honorable Robin A. Schmidt, Judge.

Charles B. Neff, Jr., McKenzie County Assistant State's Attorney, Watford City, ND, for plaintiff and appellee.

Michael R. Hoffman, Bismarck, ND, for defendant and appellant.

Gerald W. VandeWalle, C.J., Dale V. Sandstrom, Lisa Fair McEvers, Daniel J. Crothers, Carol Ronning Kapsner. Opinion of the Court by VandeWalle, Chief Justice.

OPINION

Gerald W. VandeWalle, Chief Justice.

[¶1] Michael Filkowski appealed from a criminal judgment after a jury found him guilty of driving under the influence while operating a motor vehicle. We affirm.

I

[¶2] Filkowski was stopped by a McKenzie County Deputy Sheriff for driving outside of the traffic lane. The deputy detected the smell of alcohol and observed that Filkowski's speech was slurred. A Highway Patrol officer arrived and made the same observations. After conducting field sobriety tests, Filkowski was placed under arrest for driving under the influence. He was transported to a local hospital where he consented to a blood alcohol test. The results of the blood alcohol test indicated Filkowski had a blood alcohol level above the legal limit.

[¶3] At trial, Filkowski objected to the admission into evidence of certain documents offered by the State. A Submission for Blood form was objected to based on a lack of foundation. The State subsequently introduced a " Memo Regarding Designees of the State Crime Laboratory

Page 354

Director" without objection. The memorandum, authored by Hope Olson, Director of the State Crime Laboratory, appointed and authorized Charles Eder and Kali Hieb to sign and certify records.

[¶4] Hieb was called as a witness and testified she was designated by the Director of the State Crime Laboratory to sign and certify records, but was not designated to approve any method, device, or individual qualified to perform a blood alcohol test. During her testimony, the State introduced additional documents over Filkowski's objections including: (1) List of Approved Designations of Individuals Medically Qualified to Draw Blood (September 29, 2011); (2) List of Individuals Certified to Conduct Blood Alcohol Analysis (August 1, 2012); (3) List of Approved Biological Alcohol Analysis Instruments (July 1, 2013); and (4) Toxicology Alcohol/Volatiles Analytical Report on Michael Filkowski. The first three documents were certified by Eder, with the fourth certified by Hieb.

[¶5] The district court determined Filkowski failed to provide sufficient proof that Ms. Hieb was not a designee of the Director of the State Crime Laboratory and overruled the objections. The jury ...


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