Sunday, April 24, 2011

DUI Appeal - North Dakota Blood Test Discovery Mistakes Not Sanctioned

In North Dakota v. Sauer, --- N.W.2d ----, 2011 WL 987169 (N.D.), 2011 ND 47, the defendant filed a detailed discovery request for information, which included any blood testing notes or reports. The State claimed that they had complied with the request, and the matter was set for trial some 4-5 months later. Lisa Hentges, a forensic scientist with the North Dakota Crime Lab, testified about her analysis of Sauer's blood sample. During Sauer's cross-examination, Hentges mentioned she had a case file, which included her notes and a print out of the test results from the blood tests she performed on Sauer's blood sample. Sauer asked the district court for a brief recess so he could review the file because he claimed the State did not provide him with a copy of the file in response to his discovery request. The State admitted it did not provide Sauer with a copy of Hentges' file, but claimed the discovery request was very detailed and it “didn't notice” the request for the testing notes.

The court questioned Sauer's attorney about why he did not move to compel discovery of the testing notes, and Sauer's attorney said he did not know they existed. The court provided Sauer's attorney with the brief break he requested to allow him to view the file. After the break, Sauer's attorney requested a continuance of the trial. The court denied Sauer's request for a continuance and found the case file was not material to preparing a defense and Sauer should have brought a motion to compel if he felt he did not have something he needed. Sauer continued his cross-examination of Hentges. Later, the court ordered the State to provide a copy of the case file to Sauer's attorney after court concluded for the day.

The trial court granted Sauer's request for a brief continuance to allow his attorney to inspect the case file before continuing to cross-examine Hentges. The court also ordered the State to make a copy of the case file available to Sauer's attorney after the first day of trial and he had until the next afternoon to look at the case file. Sauer's attorney failed to pick up the copy of the file. The court granted Sauer's request to make the case file a trial exhibit, but Sauer's attorney indicated he did not want the case file admitted into evidence at the trial.

On appeal, the Supremes found that the trial courts offer of a brief recess was sufficient to remedy the violation. "Sauer has not shown he was significantly prejudiced by the State's discovery violation. We conclude the court did not abuse its discretion by denying Sauer's request for a continuance." Of course, like most defense attorneys in this field, the information in the lab file was not likely decipherable by an untrained attorney in the absence of an expert's review of the same, and one to one-and-a-half days of a 'recess' wouldn't let the defense attorney get up to speed. The Supreme Court opinion fails to note that likely dilemma.

If there is one good morsel to take from the opinion, it is the following unenforced threat by the Court:

"Our opinion in this case places all prosecutors on notice that N . D.R.Crim.P. 16 does not allow them to shift the burden of obtaining materials in the hands of other governmental agencies to the defendant. We further caution that, although a showing of prejudice is generally required before reversing a criminal conviction for a discovery violation, reversal for conduct which is merely potentially prejudicial may be warranted as a sanction for institutional non-compliance and systemic disregard of the law if the conduct is commonplace."

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