Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

State v. Zomeren

Supreme Court of North Dakota

May 26, 2016

State of North Dakota, Plaintiff and Appellee
v.
Austin Van Zomeren, Defendant and Appellant

Page 450

          Appeal from the District Court of Burleigh County, South Central Judicial District, the Honorable Sonna M. Anderson, Judge.

         Britta K. Demello Rice, Assistant State's Attorney, Bismarck, N.D., for plaintiff and appellee.

         Michael R. Hoffman, Bismarck, N.D., for defendant and appellant.

         Daniel J. Crothers, Lisa Fair McEvers, Carol Ronning Kapsner, Dale V. Sandstrom, Gerald W. VandeWalle, C.J.

          OPINION

Page 451

         Daniel 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 blood test.

         I

          [¶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 .08 percent.

          [¶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.

         II

          [¶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 ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.