FILED
IN THE OFFICE OF THE
CLERK OF SUPREME COURT
FEBRUARY 16, 2023
STATE OF NORTH DAKOTA
IN THE SUPREME COURT
STATE OF NORTH DAKOTA
2023 ND 25
State of North Dakota, Plaintiff and Appellee
v.
Joshua Paul Bowen, Defendant and Appellant
No. 20220165
Appeal from the District Court of Stutsman County, Southeast Judicial
District, the Honorable Troy J. LeFevre, Judge.
AFFIRMED.
Opinion of the Court by Tufte, Justice.
Frederick R. Fremgen, State’s Attorney, Jamestown, N.D., for plaintiff and
appellee.
Adam Justinger, Fargo, N.D., for defendant and appellant.
State v. Bowen
No. 20220165
Tufte, Justice.
[¶1] Joshua Bowen appeals from a criminal judgment entered after a jury
found him guilty of driving under the influence of alcohol. We affirm,
concluding the district court did not err in finding Bowen failed to make a clear
and unambiguous request for an independent chemical test and in admitting
the chemical breath test results without requiring the State to produce the
state toxicologist at trial.
I
[¶2] Bowen was arrested and charged with driving under the influence of
alcohol. He moved to suppress evidence of the chemical breath test
administered by law enforcement, alleging he had requested an independent
blood test and law enforcement denied him a reasonable opportunity to secure
the test. After an evidentiary hearing, the district court denied the motion,
finding Bowen failed to make a clear and unambiguous request for an
independent test.
[¶3] At the pretrial conference, Bowen made a motion in limine, objecting to
the chemical breath test results being admitted without testimony from the
state toxicologist or his designee. The district court denied the motion. At trial,
the jury found Bowen guilty of DUI. The court entered judgment.
II
[¶4] Bowen argues the district court erred in denying his motion to suppress
and finding he did not clearly and unambiguously request an independent
chemical test. Our review of a district court’s order on a motion to suppress is
well-established:
This Court defers to the district court’s findings of fact and resolves
conflicts in testimony in favor of affirmance. This Court will affirm
a district court decision regarding a motion to suppress if there is
sufficient competent evidence fairly capable of supporting the
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district court’s findings, and the decision is not contrary to the
manifest weight of the evidence. Questions of law are fully
reviewable on appeal, and whether a finding of fact meets a legal
standard is a question of law.
City of West Fargo v. Williams, 2019 ND 161, ¶ 5,
930 N.W.2d 102.
[¶5] Under N.D.C.C. § 39-20-02, an arrestee, at his own expense, may have a
medically qualified individual of his choosing administer a chemical test in
addition to any chemical test administered at the direction of a law
enforcement officer. While the “failure or inability to obtain an additional test
by an [arrestee] does not preclude the admission of the test or tests taken at
the direction of a law enforcement officer,” id., the “results of chemical tests
administered at law enforcement direction may be suppressed, or charges may
be dismissed, where an arrestee is denied the right to an independent chemical
test,” Lange v. N.D. Dep’t of Transp.,
2010 ND 201, ¶ 6,
790 N.W.2d 28. Thus,
“[c]hemical test results for intoxication will not be excluded where an arrestee
makes no effort to obtain an additional independent test or some independent
factor prevents test results from being obtained.” Lange, at ¶ 6. The arrestee
has the responsibility of asserting the right to an independent test, and “the
arrestee’s request for an independent test must be clear and unambiguous.” Id.
at ¶ 7. “Whether an arrestee has made a reasonable request for an independent
test, and whether law enforcement has denied the arrestee’s opportunity to
obtain an independent test, depends upon the totality of the circumstances.”
Id.
[¶6] Bowen asserts that he clearly and unambiguously requested an
independent blood test at the law enforcement center following his arrest for
DUI. Specifically, he declared that while at the law enforcement center, he
“spoke with a female corrections officer” and that he “clearly and
unambiguously requested [his] own blood test.” He declared that after making
his request, he “was not provided with a phone or phonebook to make
arrangements for [the] blood test,” or taken to a hospital or testing facility.
Bowen did not testify at the suppression hearing, but the court received his
declaration into evidence without objection from the State.
2
[¶7] The arresting officer, Trooper Charles Kelly, testified at the suppression
hearing. He testified that he did not hear Bowen make a request for an
independent test and that Bowen did not request a phone or phonebook from
him. He further testified that after Bowen filed his declaration, he spoke with
the jail staff, who told him there was only one female correctional officer
working at the time that he brought Bowen into the law enforcement center,
Miley McDowell. Trooper Kelly testified both that McDowell did not recall
Bowen requesting an independent test and that McDowell stated Bowen did
not request a test, “otherwise, she would have informed me or another law
enforcement officer.” Trooper Kelly testified that his report stated that
McDowell did not recall Bowen requesting his own test or having a
conversation with Bowen and that she would have notified him if Bowen had
requested a test.
[¶8] McDowell testified that she did not recall “anything out of the ordinary
dealing with [Bowen].” She testified that she did not recall Bowen requesting
an independent test. When asked about Trooper Kelly’s whereabouts after
administering the chemical breath test, McDowell testified that she did not
recall this incident. However, when asked how she handles requests for
independent tests, McDowell testified that it only happened once in her eight
years as a correctional officer and that she informed the arresting officer, who
then transported the arrestee for an independent test. She testified that she
has not had any training specific to this situation, but believed her past
behavior of contacting the arresting officer was “what [she] was supposed to
do.” McDowell testified that if Bowen would have requested an independent
test, she would have notified Trooper Kelly.
[¶9] The district court found McDowell’s testimony to be credible and
concluded that Bowen failed to make a clear and unambiguous request for an
independent test. Bowen argues that his declaration shows he made a request
for an independent test to McDowell and that her lack of recollection does not
contradict his declaration. The State argues that McDowell’s absence of
recollection of this rare request for an independent test is evidence that no such
event occurred. The State asserts that McDowell has a “uniform response to a
3
DUI arrestee’s request for an independent blood test: convey the request to a
law enforcement officer.”
[¶10] Bowen’s declaration provides a bare assertion that he “clearly and
unambiguously requested [his] own blood test,” parroting the standard without
further factual context. See Lange, 2010 ND 201, ¶ 7 (stating that a request for
an independent test must be “clear and unambiguous”). McDowell testified
that she did not recall a request for an independent test and that if such a
request had been made, she would have notified the arresting officer as she
had done in the past. There is no evidence that McDowell notified Trooper Kelly
of any such request, nor does Bowen argue otherwise. Thus, a reasonable
inference from McDowell’s testimony that she would have contacted Trooper
Kelly if Bowen had requested an independent test is that no request was made
by Bowen. See Cooney-Koss v. Barlow,
87 A.3d 1211, 1214-1216 (Del. 2014)
(applying rule of evidence 406 and concluding that trial court in a medical
malpractice case abused its discretion by excluding anesthesiologist’s
testimony on his routine practice where he had no memory of patient’s
hysterectomy).
[¶11] McDowell’s testimony contradicts Bowen’s declaration, and the district
court is tasked with weighing the credibility of witnesses and conflicting
evidence. We defer to the district court’s findings of fact and resolve conflicts
in testimony in favor of affirmance. Williams,
2019 ND 161, ¶ 5. The court
found McDowell’s testimony to be credible, including her lack of recollection of
a request for an independent test, which she testified has only occurred once
in her eight years as a correctional officer. McDowell testified that she did not
recall “anything out of the ordinary dealing with [Bowen].” On this record the
district court could find McDowell’s lack of recollection of a request is more
consistent with no request having been made than with Bowen making a
request, McDowell failing to act on that request, and then McDowell not
recalling that Bowen made this rare request. We conclude there is sufficient
competent evidence supporting the district court’s finding that Bowen failed to
make a clear and unambiguous request for an independent test. The court’s
order denying suppression is not contrary to the manifest weight of the
evidence.
4
III
[¶12] Bowen argues the district court erred in denying his motion in limine
and in admitting the chemical breath test results without requiring the State
to produce the state toxicologist at trial. “We review a district court’s decision
on a motion in limine for an abuse of discretion.” State v. Lutz, 2012 ND 156,
¶ 3,
820 N.W.2d 111. A district court abuses its discretion if it acts in an
arbitrary, unreasonable, or unconscionable manner or if it misinterprets or
misapplies the law.
Id. We review an alleged violation of a constitutional right,
including the right to confront an accuser, de novo.
Id.
[¶13] Bowen argues the state toxicologist’s statements in trial exhibits 10-141
concerning the installation and inspection of the Intoxilyzer used to perform
the chemical breath test are testimonial and thus the State was required to
produce him under the Confrontation Clause and N.D.R.Ev. 707. The
Confrontation Clause protects a criminal defendant’s right “to be confronted
with the witnesses against him.” U.S. Const. amend. VI. The amendment
“prohibits the admission of testimonial hearsay against the accused, unless the
witness is unavailable to testify and the accused previously had an opportunity
to cross-examine the declarant.” State v. Duncan,
2011 ND 85, ¶ 13,
796 N.W.2d
672 (citing Crawford v. Washington,
541 U.S. 36, 68 (2004)). Testimonial
statements include:
[E]x parte in-court testimony or its functional equivalent—that is,
material such as affidavits, custodial examinations, prior
testimony that the defendant was unable to cross-examine, or
similar pretrial statements that declarants would reasonably
expect to be used prosecutorially; extrajudicial statements . . .
contained in formalized testimonial materials, such as affidavits,
depositions, prior testimony, or confessions; statements that were
made under circumstances which would lead an objective witness
1 Although Bowen states in his brief that trial exhibits 1-14 contain testimonial statements, he
conceded at oral argument that exhibits 10-14 are the documents he asserts contain testimonial
statements from the state toxicologist. Because he is arguing the state toxicologist, or his designee,
was required to be produced at trial under the Confrontation Clause and N.D.R.Ev. 707, we limit our
review to the statements made by the state toxicologist in exhibits 10-14.
5
reasonably to believe that the statement would be available for use
at a later trial.
City of West Fargo v. Olson, 2020 ND 188, ¶ 7,
948 N.W.2d 15 (quoting
Melendez-Diaz v. Massachusetts,
557 U.S. 305, 310 (2009)). However, that does
not mean “anyone whose testimony may be relevant in establishing the chain
of custody, authenticity of the sample, or accuracy of the testing device, must
appear in person as part of the prosecution’s case.” Melendez-Diaz, at 311 n.1.
The Confrontation Clause “does not apply to non-testimonial hearsay.”
Duncan, at ¶ 13 (citing Crawford, at 68).
[¶14] Rule 707, N.D.R.Ev., was adopted in response to Melendez-Diaz and
addresses “confrontation issues involving the admissibility of analytical
reports.” Olson,
2020 ND 188, ¶ 9. Rule 707(b) requires the State to produce a
person at trial who made a testimonial statement in an analytical report if the
defendant timely objects to the introduction of the report and identifies the
person making the testimonial statement to be produced to testify about the
report at trial. “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.” Olson, at ¶ 10. “The results of a chemical
breath test must be received into evidence when it is shown: (1) the sample
was properly obtained; (2) the test was fairly administered; (3) the test was
performed according to methods and devices approved by the director of the
state crime laboratory or the director’s designee; and (4) the test was performed
by an authorized individual or by one certified by the director of the state crime
laboratory or the director’s designee as qualified to perform it.”
Id. (citing
N.D.C.C. § 39-20-07(5)).
[¶15] Bowen asserts that trial exhibits 10-14 are testimonial because their
purpose is to establish that the chemical breath testing machine, Intoxilyzer
8000, was accurate, reliable, and working properly. Exhibit 10 is the
“Intoxilyzer 8000 Initial Inspection,” signed by State Toxicologist Charles Eder
as the field inspector and operator, stating the “[i]nstrument is acceptable to
be used in the field.” Exhibit 13 is the “Intoxilyzer 8000 Installation and Repair
Checkout,” signed by Eder and stating that he reviewed the installation,
6
approved the instrument for use, and certified a true and correct copy was filed
with the Attorney General’s Office. Exhibits 11, 12, and 14 are annual
“Intoxilyzer 8000 Inspection” forms, dated 2019, 2020, and 2021, respectively.
Eder signed each as the analyst and operator and stated the “[i]nstrument is
acceptable to be used in the field.”
[¶16] In Olson, we concluded that the “Intoxilyzer 8000 Initial Inspection” and
“Intoxilyzer 8000 Installation and Repair Checkout” did not contain
testimonial statements by the individual who initially inspected and reviewed
the installation of the Intoxilyzer 8000 testing device which was used to
administer a chemical breath test. 2020 ND 188, ¶¶ 14-15. We reasoned that
these reports were completed months before the criminal defendant was
charged with DUI and there was no evidence that they were completed in
anticipation of their use at a trial. Id. at ¶ 14. Moreover, there was no expected
testimony from the individual that “would prove the substance of the results
of the analytical report of the chemical breath test, or that the breath test was
properly administered.” Id. at ¶ 15. Thus, the statements in those reports were
foundational, non-testimonial statements. Id.
[¶17] Here, all of the reports signed by Eder were conducted months or years
before Bowen was administered the chemical breath test and charged with
DUI, and there is no evidence in the record that Eder made the statements in
the reports in anticipation of a trial. Eder’s expected testimony concerning
these reports would not prove the substance of the chemical breath test results
or whether Bowen was properly administered the chemical breath test
following his arrest. For the same reasons stated in Olson, we conclude the
“Intoxilyzer 8000 Initial Inspection” and “Intoxilyzer 8000 Installation and
Repair Checkout” signed by Eder are non-testimonial statements for
confrontation purposes. We also extend this rationale to the annual inspections
performed by Eder and conclude they contain non-testimonial statements. See
Lutz,
2012 ND 156, ¶ 10 (noting that Supreme Judicial Court of Massachusetts
in Commonwealth v. Zeininger,
947 N.E.2d 1060, 1062 (Mass. 2011), concluded
that annual certification attesting to the proper functioning of a breathalyzer
machine was not testimonial); Melendez-Diaz,
557 U.S. at 311 n.1. Accordingly,
7
the State was not required to produce Eder at trial, and the district court did
not abuse its discretion in denying Bowen’s motion in limine.
IV
[¶18] The judgment is affirmed.
[¶19] Jon J. Jensen, C.J.
Daniel J. Crothers
Lisa Fair McEvers
Jerod E. Tufte
Douglas A. Bahr
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