SBAND Seminar Materials DUI Case Law Update Materials | Page 7

Holding:
The legislature intertwined analytical reports and blood draws within
N.D.C.C. § 39-20-07 and therefore, N.D.R.Ev. 707 must be interpreted with N.D.C.C.
39-20-07. Under § 39-20-07(5), a prerequisite to admission of an analytical report is a
signed statement from the individual medically qualified that the blood sample was
properly drawn. The signed statement is akin to an affidavit, which is testimonial,
because it is a "solemn declaration or affirmation made for the purpose of establishing or
proving" that the blood sample was properly obtained.
The prosecution has the burden of establishing the chain of custody of evidence;
however, this does not mean that every person who laid hands on the evidence must be
called as a witness. N.D.R.Ev. 707 does not require the State to produce at trial the person
who prepared the volatiles solution used in conducting a chemical test.
5) City of Bismarck v. McCormick, 2012 ND 53, 813 N.W.2d 599
Prosecutor:
Defense:

Paul Fraase
Michael Hoffman

Facts:
McCormick was charged with driving under the influence in violation of a
Bismarck city ordinance. McCormick pled not guilty and requested a jury trial. As
provided by N.D.C.C. § 40-18-15.1, the matter was transferred from municipal court to
district court for a jury trial. The trial was held and the jury returned a guilty verdict.
Procedure: McCormick filed a motion for a judgment of acquittal arguing the city did
not introduce the municipal DUI ordinance into evidence. The district court granted
McCormick’s motion concluding it was not permitted to take judicial notice of a city
ordinance unless a copy of the ordinance was received into evidence or the parties
stipulated. The ND Supreme Court REVERSED AND REMANDED.
Holding:
The city had the ability to appeal because the court’s decision on the
merits was based upon a legal conclusion and not a resolution of some or all of the
factual elements. The ND Supreme Court will not read a prohibition against taking
judicial notice of an ordinance into section 40-18-15. ??????????????????????????)?????????????????????????????????????????????????????????????????????????????)??????Q???
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