from the District Court of Burleigh County, South Central
Judicial District, the Honorable Sonna M. Anderson, Judge.
K. Demello Rice, Assistant State's Attorney, Bismarck,
N.D., for plaintiff and appellee.
R. Hoffman, Bismarck, N.D., for defendant and appellant.
J. Crothers, Lisa Fair McEvers, Carol Ronning Kapsner, Dale
V. Sandstrom, Gerald W. VandeWalle, C.J.
J. Crothers, Justice
[¶1] Austin Van Zomeren appeals a criminal
judgment after a jury found him guilty of driving with a
blood alcohol concentration of at least .08 percent. We
affirm, concluding the district court did not abuse its
discretion in admitting the results of Van Zomeren's
[¶2] A Burleigh County sheriff's deputy
stopped Van Zomeren for crossing the fog line while driving
and arrested him for driving under the influence of alcohol
after failing a preliminary breath test. The deputy read Van
Zomeren the implied consent advisory and he agreed to take a
blood test, which showed a blood alcohol content exceeding
[¶3] Before trial Van Zomeren moved to
suppress the blood test, arguing he did not voluntarily
consent to take the test. He argued the deputy's reading
of the implied consent advisory coerced him to take the test
by stating he would be charged with a crime if he refused the
test. The district court rejected his argument and denied the
motion to suppress.
[¶4] At trial Van Zomeren objected to the
admission of Form 104, the analytical report containing his
blood test results. He argued the nurse drawing his blood did
not follow the approved method for blood collection because
after drawing the blood into a tube she shook the tube
instead of inverting it several times. He argued the State
was required to show fair administration of the blood test
through expert testimony. The State argued the blood test was
fairly administered and shaking the tube instead of inverting
it did not affect the reliability or accuracy of the test.
The district court allowed the analyst who tested the blood
to testify that shaking instead of inverting would not affect
the accuracy of the test results. After discussing the
definitions of " invert" and " shake,"
the court found expert testimony was not necessary and
admitted Form 104.
[¶5] Van Zomeren argues the district court
erred in denying his motion to suppress the blood test. He
argues his consent was not voluntary because the deputy's
reading of the implied consent advisory coerced him into
consenting to the blood test. Van Zomeren acknowledges the
issue he raises has been decided by this Court in State
v. Gackle,2015 ND 271, ¶ 5, 871 N.W.2d 589,
however, he requests us to delay deciding this case until the
United States Supreme Court decides whether North
Dakota's implied consent law is constitutional. See
State v. Birchfield,2015 ND 6, 858 N.W.2d 302,
cert. granted, 136 S.Ct. 614, 193 L.Ed.2d 494 (U.S. 2015);
Beylund v. Levi,2015 ND 18, 859 N.W.2d ...