State v. Lyman , 2021 ND 154 ( 2021 )

FILED
IN THE OFFICE OF THE
CLERK OF SUPREME COURT
AUGUST 19, 2021
STATE OF NORTH DAKOTA
IN THE SUPREME COURT
STATE OF NORTH DAKOTA
2021 ND 154State of North Dakota, Plaintiff and Appellee
v.
Brett Harvey Lyman, Defendant and Appellant
No. 20200321
Appeal from the District Court of Foster County, Southeast Judicial District,
the Honorable James D. Hovey, Judge.
AFFIRMED.
Opinion of the Court by Jensen, Chief Justice.
Ashley L. Lies, Assistant State’s Attorney, New Rockford, ND, for plaintiff and
appellee; submitted on brief.
Michael R. Hoffman, Bismarck, ND, for defendant and appellant; submitted
on brief.
State v. Lyman
No. 20200321
Jensen, Chief Justice.
[¶1] Brett Lyman appeals from a criminal judgment entered after a jury
found him guilty of driving with a blood-alcohol content greater than .08%. He
argues the district court abused its discretion by admitting into evidence his
blood test results without the State first establishing his blood sample had
been collected using the approved method for collecting a blood specimen. We
affirm the judgment.
I
[¶2] Lyman was convicted of driving with a blood-alcohol concentration over
the legal limit in violation of N.D.C.C. § 39-08-01(1)(a). During the trial, the
arresting officer, the nurse who drew Lyman’s blood, and the forensic scientist
who analyzed his blood all testified to various aspects of the process of
collecting Lyman’s blood sample. Lyman objected to the admission of the blood
test results arguing the State had failed to establish the sample was collected
in accordance with the State Toxicologist’s approved method for collecting
blood samples. The district court admitted Lyman’s blood test results into
evidence over his foundational objections.
[¶3] The jury returned a verdict of guilty. Lyman moved for judgment of
acquittal. He argued the evidence did not establish the nurse inverted the vial
after she drew Lyman’s blood as required by the State Toxicologist’s approved
method. He also argued the evidence did not show each of the steps on the
specimen submitter’s checklist at the bottom of Form 104 were followed.
Lyman’s motion was denied.
II
[¶4] Lyman argues the district court erred when it admitted his blood test
results because his blood sample was not collected in accordance with the
approved method. Determination of “[w]hether a blood test was fairly
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administered is a preliminary question of admissibility left to the district
court’s discretion.” State v. Van Zomeren, 2016 ND 98, ¶ 8, 879 N.W.2d 449.
[¶5] Under N.D.C.C. § 39-20-07(5), a district court may receive blood test
results into evidence when the State proves the sample was “properly obtained
and the test was fairly administered” and the test was performed according to
the “methods and with devices approved by the director of the state crime
laboratory.”
Section 39-20-07, N.D.C.C., “purposely eases the burden of the
prosecution in laying an evidentiary foundation for a blood-alcohol
report.” State v. Jordheim, 508 N.W.2d 878, 881 (N.D. 1993). Blood
test results are admissible if the State can show (1) the sample was
properly obtained, (2) the test was fairly administered, (3) the
testing method and devices were approved by the State
Toxicologist and (4) the person conducting the test was authorized
or was certified by the State Toxicologist as qualified to perform
the test. Id. These four requirements may be established by
documents in lieu of testimony. Id.State v. Schwab, 2008 ND 94, ¶ 8, 748 N.W.2d 696. If the documentary
evidence and the testimony does not show scrupulous compliance, the
statutory mode of authentication may not be used and the State must establish
fair administration of the blood test through expert testimony according to the
North Dakota Rules of Evidence. State v. Gackle, 2015 ND 271, ¶ 9, 871 N.W.2d
589.
III
[¶6] The approved method for collecting a blood specimen, as set out on Form
104, requires the blood be drawn into the collection tube and “[i]nverted
[s]everal [t]imes.” “[T]he purpose of inverting the tube several times is to
prevent clotting by mixing the blood with a powder chemical inside the
tube.” Van Zomeren, 2016 ND 98, ¶ 11.
[¶7] Lyman claims a video of the nurse drawing his blood shows the sample
was not inverted several times. He asserts the video shows that “[a]t the
conclusion of the drawing of Mr. Lyman’s blood the blood tube is almost
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immediately laying on a tray. It defies logic and the laws of physics to believe
the nurse inverted the tube several times.”
[¶8] The nurse who collected Lyman’s blood sample was shown the video at
trial. She maintained she inverted the sample and testified as follows:
Q. So we watched that portion again. So you’re finishing the
blood draw and the officer’s holding up his cell phone, and it does
block the view for a bit; right?
A. Correct.
Q. But it appears that almost immediately the blood tube is
laying on the tray; correct?
A. There’s a couple of seconds there. It doesn’t take very long to
go like that (gesturing). We can rewind it again if you’d like to.
Q. So your testimony would be the same, that you did invert the
blood tube?
A. Correct.
[¶9] The forensic scientist was also asked whether the blood sample was
clotted or looked typical, and she responded: “It looked typical.” The district
court admitted the blood test results into evidence explaining: “The testimony
presented from the nurse indicated that she performed all of the items on the
checklist.”
[¶10] Lyman is correct that the video does not show the nurse inverting the
blood tube. However, there is a brief period of time the tube is not visible and
the nurse who collected the blood sample testified the tube was inverted during
that brief period of time. The forensic scientist subsequently confirmed the
blood sample looked like a typical sample. While the video evidence does not
include confirmation the tube was inverted, the video evidence also does not
contradict the testimony the tube was inverted during the brief period of time
it was not visible in the video. See e.g. Crawford v. Dir., N.D. Dep’t of Transp.,
2017 ND 103, ¶ 7, 893 N.W.2d 770 (“Our review of the video of the traffic stop
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does not contradict the arresting officer’s testimony, and we do not reweigh
that evidence or reassess the arresting officer’s credibility.”). We conclude the
district court did not abuse its discretion in admitting the blood test results
over Lyman’s objection the State had failed to establish the blood tube had
been inverted as required by the approved method for collecting a blood
sample.
IV
[¶11] Form 104 provides a checklist of instructions to be completed by the
blood specimen collector. The bottom portion of the form was not received into
evidence and Lyman argues the testimony at trial was insufficient to establish
all of the instructions on the form had been followed.
[¶12] We have previously considered the absence of a completed Form 104 in
conjunction with testimony regarding compliance with the instructions for
collecting a blood sample. See State v. Keller, 2013 ND 122, ¶ 3, 833 N.W.2d
486. In Keller, the arresting officer did not complete the bottom portion of Form
104, but he testified about the steps that took place while acquiring the blood
sample. Id. We affirmed Keller’s conviction explaining testimony can establish
scrupulous compliance in the absence of a completed form:
The deputy’s failure to complete the “specimen submitted by”
portion of Form 104 by not filling in his name does not fail our
requirement of “scrupulous compliance.” His detailed testimony of
the steps he undertook to properly administer Keller’s blood test
reflects the trial court’s conclusion that the scientific reliability or
accuracy of the test was not compromised by his failure to put his
name on the form, and we conclude the district court did not abuse
its discretion in admitting it.
Id. at ¶ 13.
[¶13] Lyman argues the testimony at trial did not establish steps two through
five of the specimen submitter’s checklist were followed. A blank Form 104
detailing the checklist was admitted into evidence revealing the following
instructions:
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 Used an Intact Kit.
 Affixed Completed Specimen Label/Seal Over the Top and Down
the Sides of the Blood Tube.
 Placed the Blood Tube Inside the Blood Tube Protector and Then
Placed it in the Plastic Bag Provided. (Do Not Remove Liquid
Absorbing Sheet.)
 Placed the Plastic Bag and Completed Top Portion of This Form in
the Kit Box and Closed It.
 Affixed Tamper-Evident Kit Box Shipping Seal on Kit Box.
[¶14] The second step requires a label/seal be affixed over the top and down
the sides of the blood tube. The district court noted that when the arresting
officer was questioned about whether there were any identifying marks on the
label affixed to the vial, he testified, “I believe there was an initial mark.” The
court also noted the forensic scientist testified there was nothing unusual
about the blood test kit when she received it. We conclude the court did not
abuse its discretion in admitting the blood test results based on the testimony
that the second step had been completed in accordance with the approved
method.
[¶15] The third step requires the blood tube be placed inside a tube protector
and then placed in a plastic bag. The arresting officer testified the nurse used
all of the materials in the kit, and the blood sample was placed in a plastic bag.
Lyman asserts that testimony is insufficient because it does not confirm
compliance with the notation in step three, which provides: “(Do Not Remove
Liquid Absorbing Sheet.).” The district court found the testimony of the
forensic scientist, who analyzed the blood sample confirming there was nothing
unusual about the kit or the way it was presented, was sufficient to find the
approved method had been followed. We conclude the court did not abuse its
discretion in admitting the blood test results based on the testimony that the
third step had been completed in accordance with the approved method.
[¶16] The fourth step requires the plastic bag and the top portion of Form
104 to be placed into the kit box and closed. The arresting officer testified the
plastic bag was placed into the box. We conclude the district court did not abuse
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its discretion in admitting the blood test results based on the testimony that
the fourth step had been completed in accordance with the approved method.
[¶17] The fifth step requires a tamper-evident shipping seal be placed on the
box. The arresting officer testified the box was sealed, but he could not
remember whether he or the nurse sealed it. We conclude the district court did
not abuse its discretion in admitting the blood test results based on the
testimony that the fifth step had been completed in accordance with the
approved method.
V
[¶18] Although the video did not show the blood sample tube had been inverted
as required by the approved method, the video did not contradict testimony
that the inversion occurred during a brief period of time the blood sample tube
was not visible in the video. We conclude the district court did not abuse its
discretion in admitting Lyman’s blood test results over the objection that the
State had failed to establish the inversion of the blood sample tube had
occurred in accordance with the approved method. Although a completed
checklist from Form 104 had not been admitted into evidence, the court did not
abuse its discretion in determining the record contained sufficient testimony
to establish the blood sample had been collected in accordance with the
approved method. We affirm the judgment.
[¶19] Jon J. Jensen, C.J.
Gerald W. VandeWalle
Daniel J. Crothers
Lisa Fair McEvers
Jerod E. Tufte
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