City of West Fargo v. Hawkins

990351 City of West Fargo, Plaintiff and Appellee
v.
Kenneth Donald Hawkins, Defendant and Appellant

Appeal from: District Court, East Central Judicial District, Cass County
Judge Cynthia Rothe-Seeger
Nature of Action: Dui/Dus
Counsel:
Appellant: Vogel Law Firm
Appellee: Timothy Michael O'Keeffe , City Prosecutor
Term: 06/2000   Argument: 06/26/2000  10:45am
ND cite: 2000 ND 168
NW cite: 616 N.W.2d 856


Issues: Appellant's Statement of the Issues:
I. North Dakota law requires the prosecution to prove each essential element of the crime charged. The City of West Fargo charged Defendant with driving under the influence of alcohol on May 28, 1999. Can the conviction stand as a matter of law where all testimony pertained to alleged conduct on May 29, 1999, one day later than the offense charged?
II. Before the Form 104 blood alcohol test results can be admitted, North Dakota precedent and statute require adequate foundation be laid by entering the following documents: (1) a statement by the nurse that she followed the approved method drawing Defendant's blood; (2) a similar certified copy of a statement by the toxicologist attesting that the blood testing was done according to the approved method: and (3) the admission of certified copies of the Form 104 and the list of certified operators and instruments. Should the district court have admitted an uncertified copy of the Form 104 blood test results where the nurse did not recall drawing Defendant's blood, where the officer admitted that he did not follow the approved method in sealing the blood kit, and where the City did not offer certified copies of any foundational documents?

Appellee's Statement of the Issues:
I. Whether the uniform traffic citation sufficiently charged the Defendant with the DUI offense for which he was convicted when the Defendant's copy of the complaint indicated the incorrect date of the violation.
A. Even without amending the date of the offense, the complaint sufficiently charged the Defendant with the offense he was convicted of violating.
B. Date of the offense is not an essential element of the offense of DUI.
C. The complaint was actually amended to reflect the correct date.
II. Whether the trial court erred in admitting the Form 104 into evidence.
A. The chemical test was fairly administered.
B. The arresting officer followed the approved method.
C. The nurse followed the approved method.
D. Adequate foundation was provided for purposes of admitting the Form 104 into evidence, and the defendant was not unfairly prejudiced.

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Docket entries:
111/26/1999 NOTICE OF APPEAL: 11/24/1999
211/26/1999 ANNOUNCED DISQUALIFICATION: Kapsner, Carol Ronning
312/02/1999 ORDER FOR TRANSCRIPT: 12/02/1999
412/22/1999 RETENTION OF RECORD ON APPEAL (Kelly A. Kroke, Ct. Reporter): 01/21/2000
501/24/2000 MOT. EXT/TIME TRANSCRIPT (Kelly Kroke)
601/24/2000 ACTION BY TRIAL COURT (MTR). Granted: 03/01/2000
703/02/2000 RECORD ON APPEAL (separates 26(transcript) & 34(manual)); not rec'd - 20(tape) & 45(steno notes)
803/03/2000 TRANSCRIPT COMMENCING October 16, 1999 (2 Volumes)
903/03/2000 DISK - TRA (2)
1004/12/2000 APPELLANT BRIEF
1104/12/2000 APPELLANT APPENDIX
1204/20/2000 DISK - ATB
1305/15/2000 APPELLEE BRIEF
1405/16/2000 DISK - AEB
1505/26/2000 SITTING WITH THE COURT: McClintock, Jr., John C.
1606/26/2000 APPEARANCES: Tami L. Norgard; Timothy M. O'Keeffe
1706/26/2000 ARGUED: Norgard; O'Keeffe (Vol. X; page 43)
1809/06/2000 DISPOSITION: AFFIRMED
1909/06/2000 UNANIMOUS OPINION: VandeWalle, Gerald W.
2009/06/2000 Order/Judgment Mailed to Parties
2109/27/2000 MANDATE
2209/29/2000 RECEIPT SIGNED BY DISTRICT COURT CLERK'S OFFICE
2303/09/2007 EXPUNGED - Nonpermanent record items destroyed

Generated from Supreme Court Docket on 12/19/2014