City of West Fargo v. Hawkins
v.
Kenneth Donald Hawkins, Defendant and Appellant
Judge Cynthia Rothe-Seeger
| Appellant: | Vogel Law Firm | |
| Appellee: | Timothy Michael O'Keeffe , City Prosecutor |
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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