# State v. Entze

> North Dakota Supreme Court · November 28, 1978 · 272 N.W.2d 292

URL: https://www.frixlaw.com/law-library/cases/9728755

## Case

- **Full name:** The STATE of North Dakota, Plaintiff and Appellee, v. Reuben R. ENTZE, Defendant and Appellant
- **Court:** North Dakota Supreme Court
- **Decided:** November 28, 1978
- **Citations:** 272 N.W.2d 292; 1978 N.D. LEXIS 191
- **Precedential status:** Published
- **Opinion:** Concurring in part by VandeWALLE
- **Judges:** Erickstad, Sand, Paulson, Pederson
- **Cited by:** 7 later opinions in the Frix Law Library

## Citator (automated)

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## Opinion text

*298 VandeWALLE, Justice,
concurring and dissenting.
I concur with that portion of the majority opinion which holds that the trial court erred in concluding that with the admission in evidence of the photocopy of the Breathalyzer operator’s certificate and the certified copy of the list of certified chemical test operators, which included Fischer’s name as one of the qualified operators, the issue over his qualifications as an operator was settled. I agree that the receipt in evidence of such a certificate does not create an irrebuttable presumption of the operator’s efficiency.
I dissent from that portion of the majority opinion which holds that the trial court error was without prejudice for the reason that the defense counsel was able, through subsequent cross-examination, to gain a concession from the operator that in essence he did not know much about the machine, but that he knew how to operate it. While the defense counsel was able to gain such a concession, the operator was not permitted to be questioned as to the training he received. Whether that evidence would have had any influence on the jury is conjectural and it is not for us to decide, i. e., I do not believe we should assume it would not have had any effect.
Of more significance, however, is the fact that the trial court, without prompting from the prosecutor, and on its own initiative, determined that the cross-examination of the witness (Breathalyzer operator Fischer) as to the place of training, etc., would be prohibited. Thus we have a situation in which the trial court did not exclude such cross-examination pursuant to an objection by the prosecutor but rather did so on its own initiative. The trial judge stated:
“The Court is going to find that this line of questioning is irrelevant. His certificate has shown that he’s certified as an operator, and it’s the same thing as showing that he’s qualified to operating it, and those questions to qualifications and training and so forth are irrelevant because the Statute allows that certificate to be offered in evidence.”
The majority, however, holds that because the defense counsel was able to secure an admission from the witness that in essence he did not know much about the machine, but that he knew how to operate it, the trial court’s error was harmless error beyond a reasonable doubt. I cannot reach that conclusion in view of the trial court’s previous statement that such questions were “irrelevant” and that the certificate showed the operator was “qualified.” Since the evidence which was adduced by defense counsel, and which the majority opinion concludes made the trial court’s error in prohibiting cross-examination harmless error, also included the qualifications of the operator which the trial court had previously ruled to be “irrelevant” in view of the admission of the certificate, it would appear the jury might well have discounted the admission defense counsel did secure from the witness: that he did not know much about the machine but knew how to operate it.
I also concur with that portion of the majority opinion which holds that defense counsel did not waive the defendant’s right under the Sixth Amendment to the United States Constitution, the confrontation and cross-examination amendment, by failing to make an offer of proof.
For these reasons I would reverse the judgment of the trial court and remand for a new trial.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9728755. Public record. Not legal advice.