from the District Court of McKenzie County, Northwest
Judicial District, the Honorable Daniel S. El-Dweek, Judge.
Stephenie L. Davis (argued), Assistant State's Attorney,
and Jodi L. Colling (on brief), Assistant State's
Attorney, Watford City, ND, for plaintiff and appellee.
Michael R. Hoffman, Bismarck, ND, for defendant and
VandeWalle, Chief Justice.
1] Nathan Rolfson appealed from a criminal judgment entered
on a jury verdict finding him guilty of driving under the
influence of alcohol or drugs. Rolfson argues the district
court erred in admitting in evidence three foundation
documents for the Intoxilyzer test result because the State
failed to disclose the documents in response to his discovery
request. We affirm, concluding, although the State violated
the discovery rule, Rolfson has failed to show significant
prejudice resulted from the State's failure to disclose
the three challenged documents before trial, and therefore,
the court did not abuse its discretion in refusing to exclude
the exhibits from evidence.
2] On December 7, 2016, Rolfson was charged with driving
under the influence of alcohol or drugs in violation of
N.D.C.C. § 39-08-01. On December 15, 2016, Rolfson's
attorney made a request for discovery from the State under
N.D.R.Crim.P. 16, seeking in part:
C. Defendant requests the prosecuting attorney to permit the
defendant to inspect and to copy or photograph books, papers,
documents, data, photographs, tangible objects, buildings, or
places, or copies or portions of any of these items, if the
item is within the prosecution's possession, custody, or
control, and the item is material to preparing the defense,
the prosecution intends to use the item in its case-in-chief
at trial, or the item was obtained from or belongs to the
9, 2017, ten days before the scheduled trial, the State sent
Rolfson's attorney an email listing exhibits and
including an electronic link to documents from the Attorney
General's website the State intended to use as foundation
exhibits for admission of Rolfson's Intoxilyzer test
3] Before jury selection at the trial, Rolfson objected to
the Intoxilyzer test result being admitted in evidence
because the district court's scheduling order required
completion of discovery before the March 16, 2017 pretrial
conference, and Rolfson did not receive the list of the
State's exhibits until May 9, 2017. The court refused to
exclude the Intoxilyzer test result as a sanction for the
State's late compliance with discovery, but offered
Rolfson's attorney a continuance of the trial.
Rolfson's attorney declined to move for a continuance.
4] When the State attempted to introduce the Intoxilyzer test
result, Rolfson's attorney objected, not on the basis of
the late disclosure, but because there was no foundation
evidence showing that the Intoxilyzer device was installed by
a field inspector as required under Ell v. Dir.,
Dep't of Transp., 2016 ND 164, ¶¶ 21-22,
883 N.W.2d 464. The State requested and was allowed to print
three additional exhibits to offer in evidence. Rolfson's
attorney objected, arguing under City of Grand Forks v.
Ramstad, 2003 ND 41, 658 N.W.2d 731, the State violated
discovery by not providing the three documents in advance of
trial. The State responded that because the three additional
documents were publicly available, they were not required to
be provided in its discovery response under State v.
Packineau, 2015 ND 180, 865 N.W.2d 414. The court agreed
with the State's position, and admitted in evidence the
three additional foundation documents and the Intoxilyzer
test record and result showing Rolfson had a blood alcohol
content in excess of.08 percent.
5] Rolfson's sole argument on appeal is that the district
court erred in allowing the State to admit in evidence the
three additional exhibits "in violation of discovery,
thus allowing the State to provide foundation for the
chemical test result."
6] This Court reviews district court decisions regarding
discovery violations under the abuse of discretion standard.
See State v. Horn, 2014 ND 230, ¶ 7, 857 N.W.2d
77; State v. Loughead, 2007 ND 16, ¶ 17, 726
N.W.2d 859. A district court abuses its discretion if it acts
in an arbitrary, unreasonable, or unconscionable manner, if
its decision is not the product of a rational mental process
leading to a reasoned ...