from the District Court of Stutsman County, Southeast
Judicial District, the Honorable Cherie L. Clark, Judge.
K. Nwoga, Assistant State's Attorney, Jamestown, ND, for
plaintiff and appellee.
T. Heck, Fargo, ND, for defendant and appellant.
Nicholas Blaskowski appeals from a criminal judgment entered
after a jury verdict finding him guilty of driving under the
influence under N.D.C.C. § 39-08-0l(1)(a). Blaskowski
argues the district court erred in admitting the results of
his chemical breath test into evidence. Specifically,
Blaskowski contends the State failed to establish the
chemical breath test was fairly administered under N.D.C.C.
§ 39-20-07 because the State did not offer proof the
device used to perform the chemical breath test was installed
by a field inspector prior to its use. We reverse the
On June 17, 2018, a North Dakota Highway Patrol Trooper
stopped Blaskowski for speeding and ultimately arrested him
for driving under the influence. Blaskowski consented to a
chemical breath test via an Intoxilyzer 8000 device. The test
result indicated Blaskowski's blood alcohol content was
over the legal limit for operating a motor vehicle, he was
charged with DUI, and a jury trial was held on November 26,
At trial, Blaskowski objected to the introduction of the
Intoxilyzer 8000 Test Record and Checklist, which documented
the result of the chemical breath test. Blaskowski argued the
State did not establish the chemical breath test was fairly
administered under N.D.C.C. § 39-20-07 because the State
failed to establish the device was installed by a field
inspector prior to its use as provided in the approved method
for operating the device. The district court overruled
Blaskowski's objection and admitted the test result.
Blaskowski was found guilty of DUI under N.D.C.C. §
Whether a chemical test was fairly administered is a question
of admissibility left to the district court's discretion.
State v. Van Zomeren, 2016 ND 98, ¶ 8, 879
N.W.2d 449. Evidentiary rulings are reviewed for an abuse of
discretion. Id. at ¶ 7. "A district court
abuses its discretion only 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 determination, or if it misinterprets or misapplies
the law." Rogers v. State, 2017 ND 271, ¶
11, 903 N.W.2d 730.
"Section 39-20-07, N.D.C.C., governs the admission of a
chemical test result and allows the use of certified
documents to establish the evidentiary foundation for the
result." Ell v. Dir., N.D. Dep't of
Transp., 2016 ND 164, ¶ 17, 883 N.W.2d 464. Section
39-20-07(5), N.D.C.C., eases the burden in laying an
evidentiary foundation for a chemical test result, provided
that four foundational elements are met. Id. at
¶ 18. One of these foundational elements requires the
breath test to have been "fairly administered."
Id. (citing Filkowski v. Dir., N.D. Dep't of
Transp., 2015 ND 104, ¶ 12, 862 N.W.2d 785).
To facilitate compliance with N.D.C.C. § 39-20-07 and
the foundational element requiring a test be fairly
administered, the state toxicologist has established approved
methods for administering chemical breath tests. Thorsrud
v. Dir., N.D. Dep't of Transp., 2012 ND 136, ¶
8, 819 N.W.2d 483. The approved method for the device used in
this case was admitted at trial and provided, in part, that
the device "must be installed by a Field Inspector prior
to use." Blaskowski argues the State failed to establish
the device was installed by a field inspector prior to use.
If the evidence fails to show "scrupulous
compliance" with the approved method for administering a
chemical breath test, the evidentiary shortcut provided by
N.D.C.C. § 39-20-07 cannot be used and fair
administration of the test must be established through expert
testimony. Van Zomeren, 2016 ND 98, ¶ 10, 879
N.W.2d 449. While N.D.C.C. § 39-20-07(5) eases the
burden of laying an evidentiary foundation for a chemical
test result, "[t]he scientific accuracy of the test
cannot be established without expert testimony if there is
not strict compliance with the approved method" for
administering the chemical test . Ell, 2016 ND 164,
¶ 19, 883 N.W.2d 464.
This Court has previously reviewed a similar challenge to the
results of a chemical breath test where the approved method
for conducting the test required the device to "be
installed by a field inspector prior to use."
Ell, 2016 ND 164, ¶¶ 15-22, 883 N.W.2d
464. In Ell, the Department of Transportation
provided evidence the device had been inspected at the Office
of the Attorney General, Crime Lab Division, but did not
provide documentation the device had been installed by a
field inspector at the location where the testing occurred.
Id. at ¶ 20. The Department argued the
inspection at the Crime Lab Division satisfied the approved
method's requirement that the device be installed by a
field inspector prior to use and asserted the relocation of
the device did not adversely impact the test result.
Id. We noted it was "not clear from the
approved method or from any other evidence in the record that
inspection of a testing device is the same as ...