Petition for Writ of Certiorari — Bosch v. City of Bismarck

Supreme Court, US.

(1) FILED

No. __—_94 15 4 6 MAY 17 2005

OFFICE OF THE CLERK

In The

Supreme Court of the Anited States

,

a

MITCHELL BOSCH,

Petitioner,

vs.

CITY OF BISMARCK,

Respondent.

*

On Petition For Writ Of Certiorari

To The Supreme Court Of North Dakota

e

PETITION FOR WRIT OF CERTIORARI

*

MICHAEL RAY HOFFMAN ~

Counsel of Record for Petitioner

120 North 3rd Street, Suite 100

-- Bismarck, North Dakota 58501

(701) 355-0900

May 17, 2005

COCKLE LAW BRIEF PRINTING CO (800) 225-6964

OR CALL COLLECT (402) 342-2831

QUESTION PRESENTED

Does the Sixth Amendment require the right to

confrontation of all evidence the jury could have reasona-

bly used to find guilt beyond a reasonable doubt?

ii

TABLE OF CONTENTS

Page

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CONSTITUTIONAL PROVISIONS, STATUTES AND

ORDINANCES INVOLVED.........ccsccseseeseseeseseeecsees 1

STATRIENT OF THE CADD nccescccsisereccccael 4

REASONS FOR GRANTING THE WRIT................+: 10

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TABLE OF AUTHORITIES

Page

CASES

Cage v. Louisiana, 498 U.S. 39 (1990) .0........ccc eee 12, 13

City of Las Vegas v. Walsh, 91 P.3d 591 (Nev. 2004)......... 11

Crawford v. Washington, 541 U.S. __, 124 S.Ct.

ee RT iiclennienesietciticittietesienitiindninensamiiniaiapbibebaaiaail 10, 11, 12

In re Winship, 397 U.S. 358 (1970) .............cccscceeeceeeseeeees 13

Jackson v. Virginia, 443 U.S. 307 (1979) .............ccccceeeeeees 13

Sandstrom v. Montana, 442 U.S. 510 (1979).................... 12

State v. Webb, 2 N.C. 103 (1794) ................csccccessecceessceeees 12

CONSTITUTIONAL PROVISIONS

U.S. Constitution, Sixth Amendment............. 1, 4, 3, 13, 14

U.S. Constitution, Fourteenth Amendment ....... 1, 4, 12, 13

STATUTES

North Dakota Century Code § 39-08-01 .....0.........cccccceeeee 2

North Dakota Century Code § 39-20-07 ....0................ 2,8

ORDINANCES

Code of Ordinances, Bismarck, North Dakota, § 12-

UII Goitnaineniseasiedaidasersipiehidietanenin daiediudaaisuamuiieuatleaaaunaiaa® 1,5

1

OPINION BELOW

The opinion of the Supreme Court of North Dakota is

reported at 2005 ND 12, 691 N.W.2d 260, and reprinted in

the Appendix at App. 1.

@

vw

JURISDICTION

The judgment of the Supreme Court of North Dakota

was entered on January 19, 2005 (App. 16). A timely

petition for rehearing was denied on February 16, 2005

(App. 17-18). The jurisdiction of this Court is invoked

under 28 U.S.C. § 1257(a).

é&

Ww

CONSTITUTIONAL PROVISIONS,

STATUTES AND ORDINANCES INVOLVED

The Sixth Amendment to the United States Constitu-

tion provides in relevant part:

In all criminal prosecutions, the accused shall

enjoy the right . . . to be confronted with the wit-

nesses against him...

The Fourteenth Amendment to the United States

Constitution provides in relevant part:

... nor shall any State deprive any person of life,

liberty, or property, without due process of law

Code of Ordinances, Bismarck, North Dakota, § 12-10-

01, provides in relevant part:

1. A person may not drive ... any vehicle

upon a highway or upon public or private areas

2

to which the public has a right of access for ve-

hicular use in this state if any of the following

apply:

a. That person has an alcohol concen-

tration of an amount as set out in NDCC

Section 39-08-01 at the time of the perform-

ance of a chemical test within two hours of

driving;

b. That person is under the influence

of intoxicating liquor . . .

2. A person who violates any provision of

this section is guilty of an offense. Sentence for a

violation of this section shall be as provided by

N.D.C.C. Section 39-08-01.

North Dakota Century Code § 39-08-01 provides in rele-

vant part:

1. A person may not drive ... any vehicle upon

a highway or upon public or private areas to

which the public has a right of access for vehicu-

lar use in this state if any of the following apply:

a. That person has an alcohol concentra-

tion of at least eight one-hundredths of one

percent by weight at the time of the per-

formance of a chemical test within two

hours after the driving . . . of a vehicle. . .

North Dakota Century Code § 39-20-07 provides in rele-

vant part:

Interpretation of chemical tests. Upon the

trial of any ... criminal action or proceeding

arising out of acts alleged to have been commit-

ted by any person while driving . . . a motor vehi-

cle while under the influence of intoxicating

3

liquor, . .. evidence of the amount of alcohol . . .

in the person’s blood at the time of the act al-

leged as shown by a chemical analysis of the . . .

breath ... is admissible. For the purpose of this

section:

j 3. A person having an alcohol concentra-

tion of at least eight one-hundredths of one

percent by weight .. . at the time of the per-

formance of a chemical test within two

hours after driving . . . a vehicle ie under the

influence of intoxicating liquor at the time of

driving . . . a vehicle.

4. Alcohol concentration is based upon ...

grams of alcohol per two hundred ten liters

of alveolar air...

5. The results of the chemical analysis

must be received in evidence when it is

shown that the sample was properly ob-

tained and the test was fairly administered,

and if the test is shown to have been per-

formed according to methods and with de-

vices approved by the state toxicologist, and

by an individual possessing a certificate of

qualification to administer the test issued by

the state toxicologist. The state toxicologist

is authorized to approve satisfactory devices

and methods of chemical analysis and de-

termine the qualifications of individuals to

conduct such analysis, and shall issue a cer-

tificate to all qualified operators who exhibit

the certificate upon demand of the person

requested to take the chemical test.

6. The state toxicologist may appoint,

train, certify, and supervise field inspectors

4

of breath testing equipment and its opera-

tion, and the inspectors shall report the

findings of any inspection to the state toxi-

cologist for appropriate action. Upon ap-

proval of the methods or devices, or both,

required to perform the tests and the per-

sons qualified to administer them, the state

toxicologist shall prepare and file written

record of the approval with the director and

recorder in each county, unless the board of

county commissioners designates a different

official, and shall include in the record:

c. The operational checklist and forms

prescribing the methods currently ap-

proved by the state toxicologist in using

the devices during the administration

of the tests.

.

vv

STATEMENT OF THE CASE

In this criminal case, the North Dakota Supreme

Court concluded that petitioner Bosch’s Confrontation

Clause argument directed at certain evidence was “irrele-

vant”, even though the Court acknowledged that had

Bosch countered the evidence this may have affected the

weight given to the evidence by the jury (App. 10-11, at

{1 12-13). Bosch contends that with this simple stroke of

the pen, the North Dakota Supreme Court took away his

Sixth Amendment right of confrontation, and infringed

upon the Fourteenth Amendment requirement that the

5

State prove every element of a criminal offense beyond a

reasonable doubt.

Bosch was charged by an Officer of the City of Bis-

marck with violating the City’s ordinance against driving

under the influence of alcohol, Code of Ordinances, Bis-

marck, North Dakota, § 12-10-01. More specifically, Bosch

was charged with driving a vehicle on a public roadway

while under the influence of intoxicating liquor or with an

alcohol concentration of .08% or above. (App. 12). Bosch

pled not guilty, and a jury trial was had (App. 2, at { 3).

On the night of Bosch’s arrest, “{hje was taken to the

Bismarck Police Department, where he consented to an

Intoxilyzer test. The test indicated Bosch’s blood alcohol

level was .15 percent.” (App. 2, at { 2; 19-20). The Intox-

ilyzer test includes a “standard solution” portion of the

test, and in this case a Standard Solution No. 496 was

used (App. 19). The State Toxicologist’s Standard Solution

Analytical Report for Standard Solution No. 496, which in

the trial of this case was the City’s Plaintiff’s Exhibit 4,

stated in relevant part, “Each bottle of solution may be

used on up to 50 Intoxilyzer 5000 tests or forty-five (45)

days, whichever comes first.” (App. 21-24).

“At the trial, Bismarck police officer, Allen Nass, [was

called as a witness for the prosecution and] testified that

he was in charge of the standard solution used for Bosch’s

Intoxilyzer test.” (App. 2, at 43). Direct examination of

Officer Nass included this exchange:

Q. [Tlhe police department keeps a record

of the tests that are conducted on each standard

solution?

A. Correct.

6

Q. And you have that in front of you?

A. Yes, I do.

Q. And you're able to look at that document

and determine how many tests were run on this

specific standard solution?

A. Yes, I am.

MR. HOFFMAN: Judge, for the record, this

is my objection.

THE COURT: Okay.

(App. 2-3, at ¥ 3). The document to which Officer Nass

referred was a completed Form 120-I from the State

Toxicologist entitled, “Intoxilyzer Record”. The document

itself was never offered into evidence by the prosecution,

but was included in the record for record purposes as

Court Exhibit 1. (App. 25).

“In chambers counsel [for Bosch] explained his objec-

tion:

[Mly objection goes to Form 120-I, in that it con-

tains information which would be hearsay and

which Mr. Bosch does not have the ability to

cross-examine or to confront witnesses.

The items specifically filled in by Bismarck po-

lice officers who do these tests, they are done inde-

pendent of Officer Nass, so he did testify that he

was not directly involved in these tests and was not

present when the tests were conducted. And, there-

fore, I submit that all the information contained on

Form 120-I would be, like I said, hearsay, no ability

to cross-examine. Officer Nass was not involved in

any of that information.

7

It is offered to prove the truth of the matter as-

serted, because they are trying to prove that

Plaintiff’s Exhibit 4, the foundational document

for the Standard Solution 496 is met. And so

we're being given information that we have no

ability to test. I mean, for example, there could

have been tests run that weren’t written down.

There might have been — there is no way for us to

test that information. It’s presented to us like out

of the blue, and we can’t test it. So it is hearsay.

It is offered to prove the truth of the matter as-

serted, and we don’t have the right or the ability

to cross-examine it. It’s just there. And that’s the

objection.

“The trial court overruled Bosch’s objection, and Nass

testified that the standard solution had been used for 25

tests prior to its use for Bosch’s Intoxilyzer test. The jury

found Bosch guilty and he appealed.” (App. 3-4, at { 3; 13-

15).

“On appeal, Bosch assert[ed] the trial court abused its

discretion in admitting the Intoxilyzer test results over

Bosch’s ‘foundation, hearsay and confrontation objec-

A Sg

Plaintiff’s Exhibit 4, the Standard Solution

Analytical Report (Solution No. 496), states in

relevant part, “Each bottle of solution may be

used on up to 50 Intoxilyzer 5000 tests or forty-

five (45) days, which ever comes first.” It is

Bosch’s contention that this foundational re-

quirement of Plaintiff’s Exhibit 4 was not ade-

quately and properly shown, and, therefore,

foundation for Plaintiff’s Exhibit 5, the test re-

sult, was lacking.

8

[O]lver Bosch’s hearsay and confrontation objec-

tions, Nass was allowed to testify he looked at

the document, counted the number of tests run

on Standard Solution No. 496, and there were

only 25 tests by the time of Bosch’s test. . . .

Plaintiff’s Exhibit 4 was also filed . . . and clearly

appears to be a method approved by the state

toxicologist under NDCC 39-20-07(5) and (6)(c).

Therefore, the requirement of Plaintiff’s Exhibit

4 that “Each bottle of solution may be used on up

to 50 Intoxilyzer 5000 tests” must scrupulously

be met unless the state toxicologist testifies at

the trial. Here, the state toxicologist did not so

testify.

(App. 4-5, at J 4). See N.D.C.C. § 39-20-07(5) and (6).

The North Dakota Supreme Court concluded, as a

matter of state law in interpreting N.D.C.C. § 39-20-07(5)

and (6), (App. 5-10, at {J 5-11), that “the analytical report

and the directive therein that a standard solution may be

used for up to 50 tests is not a part of the approved

method and proof of that fact is not a prerequisite to

showing fair administration of the test or to admission of

the test results.” (App. 10, at J 11). This conclusion is nat

questioned in this petition.

However, the North Dakota Supreme Court went on to

state:

We conclude the prosecution in this case es-

tablished a prima facie foundation for admission

of the breathalyzer test results. Evidence that

more than 50 tests were conducted with the

standard solution used for Bosch’s test, if it ex-

ists, may constitute evidence discrediting the test

results, thereby affecting the weight to be given

9

to those results, but not their admissibility. [Ci-

tation omitted]. We hold, therefore, the district

court did not abuse its discretion in admitting

the test results.

(App. 10, at { 12). And then the Court concluded:

Bosch argues that his constitutional right of

confrontation was violated when Officer Nass

testified to the number of uses of the standard

solution which were conducted by other persons,

not Officer Nass, and those persons were neither

available nor required to testify. Having deter-

mined that the number of tests conducted with

the standard solution is not a foundational re-

quirement for showing fair administration of the

test for purposes of admitting the test results, we

further conclude Bosch’s Confrontation Clause

argument is irrelevant.

(App. 10-11, at { 13). Bosch’s Confrontation Clause argu-

ment on appeal to the North Dakota Supreme Court is

reprinted in the Appendix at App. 26-27.

The North Dakota Supreme Court affirmed Bosch’s

judgment of conviction (App. 11, at {14). Bosch timely filed

a petition for rehearing with the North Dakota Supreme

Court, arguing again his constitutional right of confronta-

tion and, given the Court’s acknowledgment of Bosch’s

ability to counter the challenged evidence and thereby

affect the weight to be given the evidence by the jury, tying

the Confrontation Clause argument to his constitutional

right to be free from conviction except on proof beyond a

reasonable doubt (App. 28-31). That petition was denied

without opinion (App. 17-18).

a

—

10

REASONS FOR GRANTING THE WRIT

The problem in this case is the North Dakota Su-

preme Court ruled that Bosch’s Confrontation Clause

argument about Officer Nass’ testimony of less than 50

tests was irrelevant; yet, the jury could have reasonably

used that testimony, in conjunction with Plaintiff’s Ex-

hibit 4 (App. 23), to find beyond a reasonable doubt the

test results of .15 percent. It is reasonable to so conclude

because the North Dakota Supreme Court also acknowl-

edged that if Bosch had evidence of more than 50 tests,

this “may constitute evidence discrediting the test results,

thereby affecting the weight to be given those results”. The

prosecution was not required to put on Officer Nass’

testimony, as the Court ultimately ruled; but the prosecu-

tion did affirmatively elicit the testimony and it is reason-

able to conclude the jury used that testimony in reaching a

verdict of guilty.

In Crawford v. Washington, 541 U.S. __, 124 S.Ct.

1354 (2004), this Court wrote:

The Sixth Amendment’s Confrontation Clause

provides, “[iJn all criminal prosecutions, the ac-

cused shall enjoy the right ... to be confronted

with the witnesses against him.” We have held

that this bedrock procedural guarantee applies to

both federal and state prosecutions.

The Court went on to instruct, “The text of the Confronta-

tion Clause .. . applies to ‘witnesses’ against the accused —

in other words, those who ‘bear testimony.’ . . . ‘Testimony,’

in turn, is typically ‘[a] solemn declaration or affirmation

made for the purpose of establishing or proving some fact.”

Id.

11

In regard to testimony or “testimonial”, the Court

explained, “Whatever else the term covers, it applies at a

minimum to prior testimony at a preliminary hearing,

before a grand jury, or at a former trial; and to police

interrogations. These are the modern practices with

closest kinship to the abuses at which the Confrontation

Clause was directed.” Jd. The Court had no problem

finding the statements in that case, a product of police

interrogation, to be testimonial, and their admission to be

a violation of the Sixth Amendment without the opportu-

nity for confrontation and cross-examination. The Court,

however, left “for another day any effort to spell out a

comprehensive definition of ‘testimonial.’” Id.

The case at bar does not involve prior testimony at a

preliminary hearing, before a grand jury, or at a former

trial; or police interrogation. Was the information im-

parted by Officer Nass from Court Exhibit 1 (App. 25)

testimonial? Bosch believes it was.

The State Toxicologist who prepared the Form 120-I,

and the police who filled it out, each did so knowing their

statements “were made under circumstances which would

lead an objective witness reasonably to believe that the

statement would be available for use at a later trial”. See

Crawford v. Washington, supra, citing Brief for National

Association of Criminal Defense Lawyers et al. as Amici

Curiae 3; City of Las Vegas v. Walsh, 91 P.3d 591 (Nev.

2004) (health professional’s affidavit, prepared solely for

the prosecution’s use at trial, and offered to prove the

element of alcohol concentration, violated the Sixth

Amendment without the right of confrontation). In the

case at bar, the information imparted by Officer Nass from

Court Exhibit 1 was offered to prove the element of alcohol

12

concentration; and, more importantly, to do so beyond a

reasonable doubt.

Bosch believes, under the circumstances of this case,

that Officer Nass’ evidence was “testimonial” under a due

process standard in that a jury could have reasonably used

his evidence to find guilt beyond a reasonable doubt. North

Carolina got it right all those years ago when it wrote, “[I)t

is a rule of the common law, founded on natural justice,

that no man shall be prejudiced by evidence which he had

not the liberty to cross examine.” See Crawford v. Wash-

ington, supra, citing State v. Webb, 2 N.C. 103, 104 (1794)

(emphasis added). The prejudice is the freedom from

conviction except upon competent evidence rising to the

level of beyond a reasonable doubt.

In Sandstrom v. Montana, 442 U.S. 510 (1979), the

question presented was whether a jury instruction involv-

ing a presumption violated the Fourteenth Amendment’s

requirement that the State prove every element of a

criminal offense beyond a reasonable doubt. The Court

framed the test in these terms: “[W)hether a defendant

has been accorded his constitutional rights depends upon

the way in which a reasonable juror could have inter-

preted the instruction.” Id. at 514. The Court concluded in

that case, “It is clear that a reasonable juror could easily

have viewed such instruction as” violative of the constitu-

tion. Jd. at 515.

In Cage v. Louisiana, 498 U.S. 39 (1990), the Court, in

construing the constitutionality of a reasonable doubt

instruction, stated, “[W]e consider how reasonable jurors

could have understood the charge as a whole.” Jd. at 41. The

Court concluded, in overturning the instruction, “[I]t be-

comes clear that a reasonable juror could have interpreted

13

the instruction to allow a finding of guilt based on a degree

of proof below that required by the Due Process Clause.”

Id. The Court had stated earlier in its opinion, “In state

criminal trials, the Due Process Clause of the Fourteenth

Amendment protects the accused against conviction except

upon proof beyond a reasonable doubt of every fact neces-

sary to constitute the crime with which he is charged.” Jd.

at 39, citing In re Winship, 397 U.S. 358, 364 (1970), and

Jackson v. Virginia, 443 U.S. 307, 315-316 (1979). Signifi-

cantly, for purposes of the case at bar, the Court continued:

This reasonable doubt standard “plays a vital

role in the American scheme of criminal proce-

dure.” Winship, 397 U.S., at 363. Among other

things, “[i]t is a prime instrument for reducing

the risk of convictions resting on factual error.”

Ibid.

498 U.S. at 39-40. Bosch contends the Sixth Amendment

right of confrontation is also a prime instrument for

reducing the risk of convictions resting on factual error.

Bosch believes in this case that his Sixth Amendment

right of confrontation and his Fourteenth Amendment

right of due process are interrelated.

In the above cases involving reasonable doubt, the test

was how a reasonable juror would have viewed the in-

struction. Bosch believes that test translates to this case.

Here, Bosch believes the jury could have reasonably used

the evidence elicited from Officer Nass to find guilt beyond

a reasonable doubt. If there is any question whether the

evidence elicited from Officer Nass is “testimonial” for

Confrontation Clause purposes, then that question is

decided by looking at Bosch’s Due Process guarantees

under the Fourteenth Amendment. Therefore, the question

in this case is whether the Sixth Amendment requires the

14

right to confrontation of all evidence the jury could have

reasonably used to find guilt beyond a reasonable doubt.

Bosch contends this is an important question of federal

law which should be decided by this Court.

Included with that question are these two questions:

1. If a fact is necessary to the prosecution’s case,

then do both the Sixth Amendment and due process

require the right of confrontation of any evidence offered

to prove that fact?

2. Is any evidence offered to meet the burden of proof

beyond a reasonable doubt testimonial?

a

vv

CONCLUSION ~

Petitioner Bosch requests this Court to grant this

petition for a writ of certiorari and reverse the decision of

the North Dakota Supreme Court that his Confrontation

Clause argument is irrelevant.

Respectfully submitted,

MICHAEL Ray HOFFMAN

Counsel of Record for Petitioner

120 North 3rd Street, Suite 100

Bismarck, North Dakota 58501

(701) 355-0900

App. 1

Filed 1/19/05 by Clerk of Supreme Court

IN THE SUPREME COURT

STATE OF NORTH DAKOTA

2005 ND 12

City of Bismarck, Plaintiff and Appellee

v.

Mitchell Bosch, Defendant and Appellant

No. 20040157

Appeal from the District Court of Burleigh County,

South Central Judicial District, the Honorable Burt L.

Riskedahl, Judge.

AFFIRMED.

Opinion of the Court by VandeWalle, Chief Justice.

Paul H. Fraase (on brief), Assistant City Attorney,

P.O. Box 5503, Bismarck, N.D. 58506-5503, for plaintiff

and appellee.

Michael Ray Hoffman, P.O. Box 1056, Bismarck, N.D.

58502-1056, for defendant and appellant.

App. 2

City of Bismarck v. Bosch

No. 20040157

VandeWalle, Chief Justice.

{¥1] Mitchell David Bosch appealed from a conviction

entered upon a jury verdict finding him guilty of driving

under the influence of alcohol. We hold the trial court did

not abuse its discretion in admitting the test results of an

Intoxilyzer test, and we affirm.

I

{{2]} On November 26, 2003, Bosch was arrested for

driving under the influence of alcohol. He was taken to the

Bismarck Police Department, where he consented to an

Intoxilyzer test. The test indicated Bosch’s blood alcohol

level was .15 percent.

{¥3] Bosch was charged with DUI. He pled not guilty and

a jury trial was held on May 13, 2004. At the trial, Bis-

marck police officer, Allen Nass, testified that he was in

charge of the standard solution used for Bosch’s Intox-

ilyzer test. A directive by the State Toxicologist advised

that a standard test solution “may be used on up to 50

Intoxilyzer 5000 tests.” Bosch’s attorney object to testi-

mony by Nass about the number of tests conducted with

the standard solution:

Q. [Tihe police department keeps a record

of the tests that are conducted on each standard

solution?

A. Correct.

Q. And you have that in front of you?

A. Yes, I do.

App. 3

Q. And you're able to look at that document

and determine how many tests were run on this

specific standard solution?

A. Yes, lam.

MR. HOFFMAN: Judge, for the record, this

is my objection.

THE COURT: Okay.

In chambers counsel explained his objection:

[Mly objection goes to Form 120-I, in that it con-

tains information which would be hearsay and

which Mr. Bosch does not have the ability to

cross-examine or to confront witnesses.

The items specifically filled in by Bismarck

police officers who do these tests, they are done

independent of Officer Nass, so he did testify

that he was not directly involved in these tests

and was not present when the tests were con-

ducted. And, therefore, I submit that all the in-

formation contained on Form 120-I would be, like

I said, hearsay, no ability to cross-examine. Offi-

cer Nass was not involved in any of that informa-

tion.

It is offered to prove the truth of the matter as-

serted, because they are trying to prove that

Plaintiff's Exhibit 4, the foundational document

for the Standard Solution 496 is met. And so

we're heing given information that we have no

ability to test. I mean, for example, there could

have been tests run that weren't written down.

There might have been — there is no way for us to

test that information. It’s presented to us like out

of the blue, and we can't test it. So it is hearsay.

App. 4

It is offered to prove the truth of the matter as-

serted, and' we don’t have the right or the ability

to cross-examine it. It’s just there. And that’s the

objection.

The trial court overruled Bosch’s objection, and Nass

testified that the standard solution had been used for 25

tests prior to its use for Bosch’s Intoxilyzer test. The jury

found Bosch guilty and he appealed.

II

{¥4] On appeal, Bosch asserts the trial court abused its

discretion in admitting the Intoxilyzer test results over

Bosch’s “foundation, hearsay and confrontation objec-

tions.” In his appellate brief, Bosch explains the nature of

his objections:

Plaintiff's Exhibit 4, the Standard Solution

Analytical Report (Solution No. 496), states in

relevant part, “Each bottle of solution may be

used on up to 50 Intoxilyzer 5000 tests or forty-

five (45) days, which ever comes first.” It is

Bosch’s contention that this foundational re-

quirement of Plaintiff's Exhibit 4 was not ade-

quately. and properly shown, and, therefore,

foundation for Plaintiff's Exhibit 5, the test re-

sult, was lacking.

[O]ver Bosch’s hearsay and confrontation objec-

tions, Nass was allowed to testify he looked at

the document, counted the number of tests run

on Standard Solution No. 496, and there were

only 25 tests by the time of Bosch’s test. . .

Plaintiff's Exhibit 4 was also filed .. . and clearly

appears to be a method approved by the state

toxicologist under NDCC 39-20-07(5) and (6)c).

ee

App. 5

Therefore, the requirement of Plaintiff's Exhibit

4 that “Each bottle of solution may be used on up

to 50 Intoxilyzer 5000 tests” must scrupulously

be met unless the state toxicologist testifies at

the trial. Here, the state toxicologist did not so

testify.

[75] Evidence of the amount of alcohol, drugs, or a

combination thereof, in a person’s blood as shown by a

chemical analysis of the blood, breath, saliva, or urine is

admissible under N.D.C.C. § 39-20-07, which provides, in

relevant part:

5. The results of the chemical analysis must be

received in evidence when it is shown that

the sample was properly obtained and the

test was fairly administered, and if the test

is shown to have been performed according

to methods and with devices approved by

the state toxicologist, and by an individual

possessing a certificate of qualification to

administer the test issued by the state toxi-

cologist. ...

6. .... Upon approval of the methods or de-

vices, or both, required to perform the tests

and the persons qualified to administer

them, the state toxicologist shall prepare

and file written record of the approval with

the director and the recorder in each county,

unless the board of county commissioners

designates a different official, and shall in-

clude in the record:

a. An annual register of the specific test-

ing devices currently approved, includ-

ing serial number, location, and the

date and results of last inspection.

App. 6

b. An annual register of currently quali-

fied and certified operators of the de-

vices, stating the date of certification

and its expiration.

c. The operational checklist and forms

prescribing the methods currently ap-

proved by the state toxicologist in using

the devices during the administration

of the tests.

The material filed under this section may be

supplemented when the state toxicologist deter-

mines it to be necessary, and any supplemental

material has the same force and effect as the ma-

terial that it supplements.

[{6] Under N.D.C.C. § 39-20-07(5), the results of chemi-

cal analysis to determine blood alcohol content must be

received in evidence if the test sample was properly

obtained, and the test was fairly administered and shown

to have been performed in accordance with methods and

devices approved by the State Toxicologist. Henderson uv.

Director, N.D. Dep’t of Transp., 2002 ND 44, 7 16, 640

N.W.2d 714. Absent testimony by the State Toxicologist, a

foundational requirement necessary to show fair admini-

stration of a breathalyzer test and admissibility of the test

results is a showing that the test was administered in

accordance with the approved methods filed with the clerk

of the district court. Ringsaker v. Director, N.D. Dep’t of

Transp., 1999 ND 127, { 8, 596 N.W.2d 328." The purpose

* Under N.D.C.C. § 39-20-07(6) the State Toxicologist must file the

“written record of the approval” with “the recorder in each county,

unless the board of county commissioners designates a different

official.” Here, the State Toxicologist filed all documents with the

(Continued on following page)

App. 7

of N.D.C.C. § 39-20-07 is to ease the requirements for the

admissibility of chemical test results while assuring that

the test upon which the results are based is fairly admin-

istered. Lee v. North Dakota Dep’t of Transp., 2004 ND 7,

{ 10, 673 N.W.2d 245. Whether an Intoxilyzer test has

been properly administered can be determined by proving

that the method approved by the State Toxicologist has

been scrupulously followed. Johnson v. North Dakota Dep’t

of Transp., 2004 ND 59, 7 12, 676 N.W.2d 807. However,

scrupulous compliance does not mean _ hypertechnical

compliance. Jd.

({7] The State Toxicologist filed with the state’s attorney

the list of certified chemical test operators, the list of

approved chemical testing devices, and the approved

method to conduct breath tests with the Intoxilyzer 5000

KB-EP, which was used to conduct Bosch’s breathalyzer

test. These documents were admitted into evidence with-

out objection by Bosch. The State Toxicologist also filed

with the state’s attorney a standard solution analytical

report stating that the standard solution used for Bosch’s

test was in the required concentration and was approved

for use in testing. In that report, the State Toxicologist

instructed “[e]ach bottle of solution may be used on up to

50 Intoxilyzer 5000 tests or forty-five (45) days, which ever

comes first.” Bosch’s objection to the trial court’s admis-

sion of the Intoxilyzer test results is that the State failed

to provide adequate proof that the standard solution used

for Bosch’s test had not been used more than 50 times.

Although Officer Nass testified that the standard solution-

had only been used 25 times, Bosch objects that Nass did

Burleigh County State’s Attorney, who was designated by the board of

county commissioners to receive and hold the documents.

App. 8

not have personal knowledge of each test conducted with

the standard solution and, therefore, could not offer

credible evidence that the standard solution had only been

used that many times. Bosch asserts that without ade-

quate proof of this fact, the State has failed to prove fair

administration of the test, and the trial court, therefore,

abused its discretion in admitting the test results.

[¥8] But, there is nothing in N.D.C.C. § 39-20-07 which

requires, for fair administration of a breath test, that a

test solution cannot be used for more than 50 tests, unless

that requirement is made a part of the approved method

for conducting tests. The approved method, filed by the

State Toxicologist, sets forth with specificity the require-

ments for insuring that a test is conducted fairly and

accurately. There is no requirement in the State Toxicolo-

gist’s approved method for conducting breathalyzer tests

which requires the standard solution not be used more

than 50 times. The approved method requires running a

test sequence that includes a “standard solution test” to

insure that the standard solution is within the required

concentration for accurate testing. The standard solution

used for Bosch’s test fell within the accepted parameters of

the standard solution test. Bosch does not argue the

solution was defective or not within acceptable concentra-

tion levels. There is no reference within the approved

method limiting the number of tests that can be conducted

with a standard solution or indicating that using a solu-

tion in excess of 50 tests affects the scientific accuracy of

the test results.

[{9] The approved method states “[w]hen the test is

conducted according to this method, it is considered as

fairly administered and the result obtained is scientifically

accepted as accurate.” The State Toxicologist filed a

App. 9

standard solution analytical report verifying the standard

solution used for Bosch’s test was quantitatively tested

and met the required concentration for accurate testing.

There is nothing in the statute or the State Toxicologist’s

approved method limiting the number of tests per bottle of

solution as a prerequisite to fair administration of the test.

We will not infer from the advisory statement in the

analytical report that using a standard solution for no

more than 50 tests is a necessary part of the approved

method for proving fair administration of a test. For a

process to be a necessary part of the approved method, the

State Toxicologist must expressly include it in the ap-

proved methodology and make it a part of the requirement

for fair administration. The State Toxicologist has not

expressly made the “up to 50 tests” directive a part of the

approved method, and we will not infer that it is a re-

quirement for fair administration of a test.

[{10] Although we understand the confusion created by

the State Toxicologist’s filing, and the prosecution’s

introduction into evidence, of a document entitled “ana-

lytical report” and containing a statement such as the one

at issue here, the term “approved method” has become a

word of art. See, e.g., Johnson, 2004 ND 29, 411, 676

N.W.2d 807; Lee, 2004 ND 7, { 11, 673 N.W.2d 245; Moser

v. North Dakota State Highway Comm’r, 369 N.W.2d 650,

653 (N.D. 1985); State v. Schneider, 270 N.W.2d 787, 791

(N.D. 1978). As such, it refers to the document filed by the

State Toxicologist under N.D.C.C. § 39-20-07(5) and (6)

showing the “operational checklist and forms prescribing

the methods currently approved by the State Toxicologist

in using the devices during the administration of the

tests.”

App. 10

[{¥11] Under N.D.C.C. § 39-20-07(6), the State Toxicolo-

gist may supplement material filed under that section,

including the register of approved testing devices, the

register of qualified certified operators, and the opera-

tional checklist and forms. The supplemental materials

have the “same force and effect as the material that it

supplements.” Unless, however, the State Toxicologist

includes in the approved method which is filed with the

appropriate entity a specific reference to a supplemental

filing, stating that it is a required part of the approved

method for fair administration of a test, we will not infer

that a filed document is part of the foundational require-

ment for proving fair administration. Consequently, we

conclude the analytical report and the directive therein

that a standard solution may be used for up to 50 tests is

not a part of the approved method and proof of that fact is

not a prerequisite to showing fair administration of the

test or to admission of the test results.

{{¥12] We conclude the prosecution in this case estab-

lished a prima facie foundation for admission of the

breathalyzer test results. Evidence that more than 50

tests were conducted with the standard solution used for

Bosch’s test, if it exists, may constitute evidence discredit-

ing the test results, thereby affecting the weight to be

given to those results, but not their admissibility. See

State v. Zimmerman, 516 N.W.2d 638, 642 (N.D. 1994). We

hold, therefore, the district court did not abuse its discre-

tion in admitting the test results.

III

[¥13] Bosch argues that his constitutional right of

confrontation was violated when Officer Nass testified to

App. 11

the number of uses of the standard solution which were

conducted by other persons, not Officer Nass, and those

persons were neither available nor required to testify.

Having determined that the number of tests conducted

with the standard solution is not a foundational require-

ment for showing fair administration of the test for pur-

poses of admitting the test results, we further conclude

Bosch’s Confrontation Clause argument is irrelevant.

[{¥14] The judgment of conviction is affirmed.

[415] Gerald W. VandeWalle, C.J.

Dale V. Sandstrom

William A. Neumann

Mary Muehlen Maring

Carol Ronning Kapsner

App. 12

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App. 13

STATE OF NORTH DAKOTA IN DISTRICT COURT

COUNTY OF BURLEIGH - SOUTH CENTRAL

SPATE-OF NORFH DAKOTA JUDICIAL DISTRICT

City of Bismarck Case # 04-5-0003

-VS-

Mitchell Bosch

ORDER

x} D

On 5/13/04, the defendant (KH appeared DO) did not

appear) before the Court on the offense of Driving

Under the Influence and; & i defendant (0 entered

a plea of guilty & was found guilty) 0 ii after trial,

the defendant was found NOT GUILTY; 0 iii after

review, the defendant is found to be in violation of

the Court’s Order of

IT IS ORDERED:

The matter is dismissed. O B A judgement

of acquittal is entered.

Imposition of the sentence is deferred, and 61 days

after probation ends (if all conditions are met) the

guilty plea is withdrawn, the case dismissed, and

the file sealed.

Judgement of guilty is entered, and defendant is

sentenced for a period of 15 days to the KX} County De-

tention Center/Jail OO Department of Corrections

O Other with all suspended for 18 months on

conditions.

Defendant shall pay a fine in the amount of $275,

through the Clerk of District Court, with $____ sus-

pended on conditions.

Defendant must pay the mandatory court adminis-

trative fee, through the Clerk of District Court:

$125] for Class B Misdemeanor; $200 for Class A

Ol

App. 14

Misdemeanor; $400 for Class C Felony; $650 for

Class B Felony; $900 for a Class A or AA Felony

0 waived $

Defendant must pay the mandatory $100 indigent

defense/court facility improvement fee 0 waived

$

Defendant must pay the $25 indigent defense

application fee & does not apply 0 waived $

Defendant shall pay a crime victim witness program

fee in the amount of $

All fines and fees shall be paid beginning May 30 at

a rate of $100.00 per month.

Other

CONDITIONS

The defendant shall report to the Sheriff to begin

sentence on at o'clock .m.

The defendant’s imprisonment shall

0 be served on weekends

© work release privileges if approved by Sheriff

0 be served at the , with arrangements

to be made with personnel at the facility.

©) be with credit for time served (__ days).

The defendant shall make restitution in the sum of

$ to be paid by certified check or money order

O directly to victim and file proof of payment

by ; or through the 0) Clerk of

District Court 0 County State’s Attorney beginning

at the rate of $ per month.

The defendant shall complete a chemical depend-

ency evaluation by a certified addiction counselor,

and file proof with the Court by 6/13/04 0 Follow

O 6

O7

8

Date:

App. 15

through with any recommended treatment wd

and file proof with the court by

The defendant is placed on probation for a period of

18 and shall not violate this Order or any munici-

pal, state, or federal laws and such probation is:

& unsupervised (© supervised and subject to the

additional conditions set forth by the Court. 0) su-

pervision suspended for a period of . Fail-

ure will result in additional conditions set in

Appendix A.

The defendant shall complete hours of

O) community service by :

O) attend ACT class by ;0 sub-

mit to fingerprinting.

Other:

Any violations of this Order may result in a revoca-

tion or termination of probation, and the imposition

of any suspended sentence or penalty.

May 13, 2004 District Judge: /s/ Burt L. Riskedahl

Counsel for State City: Mr. Fraase

Counsel for Defendant: Mr. Hoffman

Waived Counsel: 0 Yes

I understand the conditions of this sentence and I ac-

knowledge that I have received a copy of this Order. If my

address changes before completion of any of the condi-

tions, it is my responsibility to provide the Court and the

State’s Attorney with my new address.

Defendant’s Signature /s/ Mitchell Bosch

App. 16

IN THE SUPREME COURT

STATE OF NORTH DAKOTA

JUDGMENT

Supreme Court No. 20040157

Appeal from the district court for Burleigh County.

City of Bismarck, Plaintiff and Appellee

v.

Mitchell Bosch, Defendant and Appellant

This appeal having been heard by the Court at the No-

vember 2004 Term before:

Chief Justice Gerald W. VandeWalle, Justice William A.

Neumann, Justice Dale V. Sandstrom, Justice Mary

Muehlen Maring, and Justice Carol Ronning Kapsner;

and the Court having considered the appeal, it is OR-

DERED AND ADJUDGED that the judgment of conviction

is AFFIRMED.

This judgment, together with the opinion of the Court filed

this date, constitutes the mandate of the Supreme Court.

Dated: January 19, 2005.

By the Court:

/s/ Gerald W. VandeWalle

Chief Justice

ATTEST:

/s/ Penny Miller

Clerk

seal

te ee

ance ag nant te at,

App. 17

IN THE SUPREME COURT

STATE OF NORTH DAKOTA

ORDER ON PETITION FOR REHEARING

Supreme Court No. 20040157

Appeal from the District Court for Burleigh County.

City of Bismarck, Plaintiff and Appellee

v.

Mitchell Bosch, Defendant and Appellant

This appeal having been heard by the Court at the No-

vember 2004 Term and an opinion having been filed on

January 19, 2005, by:

Chief Justice Gerald W. VandeWalle, Justice William A.

Neumann, Justice Dale V. Sandstrom, Justice Mary

Muehlen Maring and Justice Carol Ronning Kapsner;

and a petition for rehearing having been filed by Michael

R. Hoffman, counsel for the Appellant Mitchell Bosch, and

the Court having considered the matter, it is hereby

ORDERED AND ADJUDGED, that the petition be and is

hereby DENIED.

AND IT IS FURTHER ORDERED, that this cause be and

it is hereby remanded to the District Court for further

proceedings according to law, and the judgment of this

Court.

wd

App. 18

Dated: February 16, 2005

By the Court:

/s/ Gerald W. VandeWalle

Chief Justice

North Dakota Supreme Court

Attest: /s/ Penny Miller

Clerk of the Supreme Court

Seal

App. 19

Intoxilyzer Test Record and Checklist

State Toxicologist Bismarck, ND 58501

CMI INC

INTOXILYZER — ALCOHOL ANALYZER

ND MODEL 5000 SN 68-012127

11/26/2003 11/01

TEST AC TIME

01 DIAGNOSTIC OK 45+5 DEG C

02 ROOM AIR .000 01:48 CST

03 SUBJECT TEST 1 .169 01:48 CST

04 ROOM AIR 000 01:50 CST

05 STD. SOL. 112 01:51 CST

06 ROOM AIR 000 01:52 CST

07 SUBJECT TEST 2 .157 01:53 CST

08 ROOM AIR .000 01:54 CST

09 REPORTED AC 15 01:53 CST

DIFFERENCE OK

NO RFI DETECTED

10 SIM TEMP = 34.0 LOCATION=BSPD

SUB NAME = BOSCH, MITCHELL D

SUB DOB = 09/30/82

SUB SEX=MALE WEIGHT = 165

TEST = DUI CIT = 4347472

DR. LIC. = ND/501060747

SIMUL SER NO = DR3452

STD SOL NO = 496

COUNTY = 08 OPER NO = 069807

20 minute waiting period ascertained? Y

A clean mouthpiece was used for and disposed

of after the first subject test?

Standard Solution test completed? Y

I followed the approved method and the

instructions displayed by the intoxilyzer in

conducting this test.

App. 20

OPERATOR'S SIGNATURE /s/ [Illegible] 7191

Remarks: 03-17273

App. 21

State of North Dakota )

) ss

County of Burleigh )

(Filed July 12, 2004)

I, Margaret A. Pearson, do hereby certify that I am

a duly-appointed State Toxicologist for the State of

North Dakota and an official custodian of the records

and files of the office thereof, that I have carefully

compared the Standard Solution Analytical Report

(Solution No. 496) hereto attached with the respective

original as the same appears of record on file at the

Office of Attorney General, Crime Laboratory Division,

in the County of Burleigh, North Dakota, and find the

same to be a true and correct copy thereof and of the

whole thereof. In witness whereof I have set my hand at

the city of Bismarck, in said county this 30th day of

October, 2003.

/s/ Margaret A. Pearson

Margaret A. Pearson,

State Toxicologist

State of North Dakota )

) ss

County of Burleigh )

On this 30th day of October, 2003 before me person-

ally appeared Margaret A. Pearson, known to me to be a

State Toxicologist for the State of North Dakota, ac-

knowledged to me that she has executed the same.

Subscribed to and sworn before me this 30th day of

October, 2003.

App. 22

/s/ Cindy Leingang

Cindy Leingang, Notary

Public, State of North Dakota

My Commission Expires

January 11, 2005

App. 23

[SEAL] OFFICE OF ATTORNEY GENERAL

Crime Laboratory Division

[Address And Phone Numbers Omitted In Printing]

Standard Solution Analytical Report

Standard Ethyl Alcohol Solution No. 496 Date Approved

30 October 2003

The solution was tested quantitatively by gas chromatog-

raphy and Intoxilyzer 5000 analysis.

A proper result for the standard test using this solution

should be in the range of 0.100% to 0.119% blood alcohol,

(g/100 ml of blood or g/210 L of alveolar air).

The Intoxilyzer will print out the value of the standard

test in 3 digits on Intoxilyzer Test Records (Form 106-KB

or Form 106-KB-EP).

Having found the ethyl] alcohol in the required concentra-

tion to simulate the equivalent of 0.11% blood alcohol at

34.0+0.2°C, I the undersigned hereby approve the stan-

dard ethyl alcohol solution for use as a standard solution

in breath testing.

The number of bottles sent to each location will be based

on their need. Consequently, it is possible some locations

may use the solution with a certain batch number for

longer than a month or two, while other locations may use

standard solutions from different batches in the same

month. Each bottle of solution may be used on up to 50

Intoxilyzer 5000 tests or forty-five (45) days, whichever

comes first.

App. 24

/s/ Margaret A. Pearson

Margaret A. Pearson,

State Toxicologist

Form 112

Toxicology Laboratory

Crime Laboratory Division

wy NONI

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Shuutater Sorial

1 DAKOTA DEPARTMENT OF HEALTH

OFFICE OF THE STATE TOXICOLOGIST

P.O. DOX 927 - WISMALCK, ND 60602-0937

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App. 26

IN THE SUPREME COURT

STATE OF NORTH DAKOTA

City of Bismarck,

Plaintiff/Appellee,

Supreme Court No.

i 20040157

Mitchell David Bosch,

Defendant/Appellant.

BRIEF OF APPELLANT

Appeal from Criminal Judgment

Burleigh County District Court

South Central Judicial District

MICHAEL R. HOFFMAN

Attorney for Appellant

P.O. Box 1056

Bismarck, ND 58502-1056

(701) 355-0900

N.D. State Bar ID 04366

” * *

IV. Confrontation

Crawford v. Washington, __ U.S. __, 124 S.Ct.

1354, 158 L.Ed.2d 177 (2004), has changed the map of

criminal law. Now, where testimonial evidence is at

issue, the Sixth Amendment demands what the common

law required: unavailability and a prior opportunity for

cross-examination. Here, the question becomes whether

App. 27

the evidence is testimonial, because there was no show-

ing of unavailability or a prior opportunity for cross-

examination.

Crawford states that the Confrontation Clause

“applies to ‘witnesses’ against the accused — in other

words, those who ‘bear testimony.’ ... ‘Testimony,’ in

turn, is typically ‘[a] solemn declaration or affirmation

made for the purposes of establishing or proving some

fact.’” Here, the information contained in court’s Exhibit

1, was made for the purpose of establishing or proving a

fact against Bosch, that being the required foundation

for complying with Plaintiff's Exhibit 4.

In City of Las Vegas v. Walsh, 91 P.3d 591 (Nev.

2004), the Supreme Court of Nevada held that a health

professional’s affidavit (similar to the statement pro-

vided for in NDCC 39-20-07(10)) was testimonial, and in

that case violated the defendant’s rights under the Sixth

Amendment’s Confrontation Clause.

Here, the imparting of the information contained in

Court’s Exhibit 1 to the injury, under the circumstances

of this case, violated Bosch’s rights under the Sixth

Amendment’s Confrontation Clause.

* * *

App. 28

IN THE SUPREME COURT

STATE OF NORTH DAKOTA

City of Bismarck,

Plaintiff/Appellee,

Supreme Court No.

a 20040157

Mitchell David Bosch,

Defendant/Appellant.

PETITION FOR REHEARING

Appeal from Criminal Judgment

Burleigh County District Court

South Central Judicial District

MICHAEL R. HOFFMAN

Attorney for Appellant

P.O. Box 1056

Bismarck, ND 58502-1056

(701) 355-0900

N.D. State Bar ID 04366

* * *

This petition for rehearing does not contest the

Court’s conclusion that “the analytical report and the

directive therein that a standard solution may be used

for up to 50 tests is not a part of the approved method

and proof of that fact is not a prerequisite to showing

fair administration of the test or to admission of the test

)

App. 29

results.” Opinion, § 11. Bosch recognizes the Court’s

conclusion as a matter of state law.

This petition for rehearing instead focuses on the

court’s statement. “Evidence that more than 50 tests

were conducted with the standard solution used for

Bosch’s test, if it exists, may constitute evidence discred-

iting the test results, thereby affecting the weight to be

given to those results, but not their admissibility.”

Opinion, { 12. Given the court’s conclusion in { 11,

Bosch agrees with this statement in { 12 regarding the

weight to be given the results, and sees three scenarios

resulting from the statement.

The first scenario is where the defense puts on

evidence of more than 50 tests, either through cross-

examination or direct testimony. This is the most obvi-

ous and direct scenario given the statement in { 12. In

closing argument, the defense would argue the directive

of the State Toxicologist in the Standard Solution

Analytical Report and the defense evidence of more than

50 tests. The jury would then decide the weight of the

test results in the context of the prosecution’s complete

burden of proof beyond a reasonable doubt.

The second scenario is where neither the prosecu-

tion nor the defense put on evidence of the number of

tests. Under the scenario, the prosecution would put in

evidence all of the necessary documents filed by the

State Toxicologist including the Standard Solution

Analytical Report, but would not put on any evidence of

the actual number of tests in the case. The defense

would or could not cross-examine on the subject, and

would not have any affirmative evidence by way of

direct examination. In closing argument, however, the

App. 30

defense could still validly argue the prosecution did not

meet its complete burden of proof beyond a reasonable

doubt by its failure to put in any evidence regarding the

actual number of tests in the case. A jury could find a

defendant not guilty on this basis. The defense argu-

ment would be a lack of evidence argument, and it

would go to the weight of the evidence in the context of

the prosecution’s complete burden of proof beyond a

reasonable doubt.

The final scenario, which is this case, is where the

prosecution in fact offers evidence of 50 tests or less to

bolster the directive of the State Toxicologist in the

Standard Solution Analytical Report. The prosecution

need not offer such evidence under the court’s ruling in

this case, but once it does the evidence needs to be

competent. Here, the evidence was not competent. It

was hearsay and it violated Bosch’s federal constitu-

tional right of confrontation. Also, by allowing this

incompetent evidence, the district court violated Bosch’s

constitutional right to argue lack of evidence and to be

free from conviction except on proof beyond a reasonable

doubt only upon competent evidence. Further, under the

Court’s statement in 7 12, the district court’s admission

of this incompetent evidence worked to be burden

shifting, forcing Bosch to produce evidence to counter

the incompetent evidence. Contrary to the Court’s final

conclusion in this case, Opinion, { 13, Bosch’s Confron-

tation Clause argument is not irrelevant.

Rule 103(a), NDREv, provides, in relevant part,

“Error may not be predicated upon a ruling which

admits or excludes evidence unless a substantial right of

the party is affected”. Here, the admission of the prose-

cution’s evidence of 50 tests or less affected Bosch’s

App. 31

substantial rights, those being his federal rights under

the Confrontation Clause and his federal right to be

convicted only when the prosecution has met its com-

plete burden of proof beyond a reasonable doubt.

Respectfully submitted this __ day of January

2005.

MICHAEL R. HOFFMAN

North Dakota Bar ID 04366

P.O. Box 1056

120 N. 3rd St., Ste. 100

Bismarck, ND 52502-1056

355-0900 |

Michael R. Hoffman