This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (2004).
IN COURT OF APPEALS
Mark R. Sickmann,
Filed December 12, 2006
Reversed and remanded
Sherburne County District Court
File No. TX-04-8980
Mike Hatch, Attorney General, Thomas R. Ragatz, Assistant Attorney General, 1800 Bremer Tower, 445 Minnesota Street, St. Paul, MN 55101-2134; and
Kathleen A. Heaney, Sherburne County Attorney, Sean S. Dillon, Assistant County Attorney, Government Center, 13880 Highway 10, Elk River, MN 55330 (for respondent)
Kevin W. DeVore, Charles A. Ramsay, Ramsay & Devore, P.A., 450 Rosedale Towers, 1700 West Highway 36, Roseville, MN 55113 (for appellant)
Considered and decided by Willis, Presiding Judge; Wright, Judge; and Huspeni, Judge.
U N P U B L I S H E D O P I N I O N
In this appeal from conviction of DWI, appellant argues that his rights under the Confrontation Clause were violated when the person who withdrew his blood was not called to testify. We agree, and reverse and remand for a new trial.
On October 9, 2004, Sherburne County Deputy Sheriff Chad Edwards responded to a citizen complaint of an erratic driver. Edwards ran the license plate number, learned the address of the registered owner, and drove to appellant Mark Rueben Sickmann’s house, arriving there at about 10:45 p.m. Edwards noticed the vehicle parked normally in the driveway. Sickmann approached Edwards and admitted driving the vehicle. He was polite, cooperative, and obeyed all of Edwards’s commands. Edwards detected the odor of alcohol coming from Sickmann’s breath and noticed that he had bloodshot eyes. Sickmann first denied consuming alcohol prior to driving home, then admitted to consuming “one or two beers” and later admitted to drinking “two beers and some wine.” He denied consuming any alcohol since arriving home.
Edwards conducted a field sobriety test and observed that Sickmann had all six indicators of impairment on the horizontal-gaze nystagmus test, three indicators of impairment in the one-legged-stand test, and two indicators of impairment in the walk-and-turn test. Edwards subsequently arrested Sickmann for misdemeanor driving while impaired (DWI) and transported him to jail.
Upon arrival at jail, Edwards read the implied-consent advisory to Sickmann, who then consented to the test. There was a problem with the Intoxilyzer, however, so Edwards offered Sickmann an alternative. Sickmann consented to a blood test and was transported to the Monticello Hospital, where Debra Collier withdrew Sickmann’s blood, and signed a document attesting to being qualified under Minn. Stat. § 169A.51, subd. 7 (2004). The document indicates that Collier withdrew blood at 12:50 a.m.
Sickmann was transported back to jail along with the vials of blood. Edwards placed the vials in an evidence locker. On October 28, 2004, Edwards received notice that the blood contained an alcohol concentration of .15. Sickmann was charged with driving while impaired, in violation of Minn. Stat. § 169A.20, subd. 1(1) (2004), and driving with an alcohol concentration of .10 or more as measured within two hours of driving, in violation of Minn. Stat. § 169A.20, subd. 1(5) (2004).
At trial, Edwards testified, over objection, that the vials remained in the locker until mailed by the evidence technician. Joseph Yoch, a scientist employed by the Bureau of Criminal Apprehension (BCA), testified at trial that he received and analyzed the vials of blood, and that the results revealed an alcohol concentration of .15.
A jury found Sickmann guilty of both offenses with which he was charged. This appeal follows.
D E C I S I O N
Generally, evidentiary rulings—including the admission of chemical or scientific test reports—are within the discretion of the district court and will not be reversed absent a clear abuse of discretion. But whether the admission of evidence violates a defendant’s rights under the Confrontation Clause is a question of law this court reviews de novo.
State v. Caulfield, 722 N.W.2d 304, 308 (
Sickmann argues that under Crawford
v. Washington, 541
Sickmann argues that his rights under the Confrontation Clause were violated because he was not able to confront the hospital employee who took his blood. He contends that his blood was not withdrawn by a qualified person pursuant to Minn. Stat. § 169A.51, subd. 7(a) (2004), and that the state failed to call the person to testify, and, therefore, did not meet its burden of proof in establishing that the test was reliable and its administration conformed to the procedure necessary to ensure reliability.
We first address the question of whether the certificate from Debra Collier was testimonial. The supreme court, in the recent case of State v. Caulfield, applied Crawford in addressing the admissibility of a BCA lab report without the lab technician present at trial. The court held that the BCA “report is testimonial and that its admission, under the statute permitting its introduction without the testimony of the analyst, violated Caulfield’s rights under the Confrontation Clause.” Caulfield, 722 N.W.2d at 307.
The state argues here that,
in contrast to the BCA report, the certificate of the person drawing blood is
not testimonial, but is more akin to a business record. The state, in urging
this court to distinguish between the medical-personnel certificate and the BCA
report discussed in Caulfield, has the burden to prove that the
certificate is not testimonial. See
While the Supreme Court in Crawford declined to offer a comprehensive definition of “testimonial,” it did outline three general categories of testimonial statements:
[E]x parte in-court testimony or its functional equivalent—that is, material such as affidavits, custodial examinations, prior testimony that the defendant was unable to cross-examine, or similar pretrial statements that declarants would reasonably expect to be used prosecutorially; extrajudicial statements contained in formalized testimonial materials, such as affidavits, depositions, prior testimony, or confessions; statements that 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.
It is undisputed that the medical personnel certificate was offered as evidence and Sickmann objected. The state, in contending that the certificate was offered merely as collateral evidence of the reliability of the blood test, is asking this court to make a distinction that we are unable to make. The supreme court in Caulfield found persuasive the line of cases that have held that lab reports are testimonial under Crawford. Included in that list is a decision finding that parts of an “affidavit related to maintenance of [a] breathalyzer were testimonial because they were statements one would reasonably expect to be used prosecutorially and were made in circumstances that would lead an objective witness to reasonably believe the statements would be available for trial.” Caulfield, 722 N.W.2d at 310 (citing Shiver v. State, 900 So. 2d 615, 618 (Fla. Dist. Ct. App. 2006)).
By analogy, the medical-personnel
certificate would also be considered testimonial because it contains statements
that one would reasonably expect to be used prosecutorially and be available
for trial. A line of cases exists supporting the importance of the person
who withdraws blood for the purpose of determining the presence of alcohol or
controlled substances being qualified under the predecessor to Minn. Stat. § 169A.51,
subd. 7(a). See State v. Pearson, 633 N.W.2d 81, 84 (Minn.
App. 2001) (affirming district court finding that a medical laboratory
assistant is authorized to withdraw blood); Bortnem v. Comm’r of Pub. Safety,
610 N.W.2d 703, 706 (Minn. App. 2000) (concluding that police officer, who was
also a paramedic, not authorized to withdraw blood), review denied (
The person who withdraws blood is an important part of the creation and preservation of evidence in a proceeding such as this, and the medical-personnel certificate is a critical aspect of evidence. The medical-personnel certificate indicates that a medical-laboratory technician withdrew a blood sample at the request of a peace officer and that the person who withdrew the blood was authorized to do so under the applicable statute. The medical-laboratory technician in this case attested to her qualifications, and under Minn. Stat. § 169A.51, subd. 7(a), only authorized people are permitted to withdraw blood samples. Thus, we conclude that the medical-personnel certificate is testimonial, and under Caulfield, its admission, under the statute permitting its introduction without the testimony, violated Sickmann’s rights under the Confrontation Clause.
The state also argues, however, that Sickmann waived his right under the Confrontation Clause by failing to comply with Minn. Stat. § 634.15, subd. 2 (2004), which states that
an accused person or the accused person’s attorney may request, by notifying the prosecuting attorney at least ten days before the trial, that the following persons testify in person at the trial on behalf of the state:
(a) A person who performed the laboratory analysis or examination for the report described in subdivision 1, clause (a); or
(b) A person who prepared the blood sample report described in subdivision 1, clause (b).
In Caulfield, the supreme court specifically addressed Minn. Stat. § 634.15 (2004) and found that it violated the Confrontation Clause. The court concluded:
At a minimum, any statute purporting to admit testimonial reports without the testimony of the preparer must provide adequate notice to the defendant of the contents of the report and the likely consequences of his failure to request the testimony of the preparer. Otherwise, there is no reasonable basis to conclude that the defendant’s failure to request the testimony constituted a knowing, intelligent, and voluntary waiver of his confrontation rights.
Caulfield, 722 N.W.2d at 313. The court stated that the
statute “does not require adequate notice to the defendant” and, therefore, violates
the Confrontation Clause.
We recognize that
constitutional error does not mandate a reversal and a new trial if that error
is determined to be harmless beyond a reasonable doubt. State v.
Juarez, 572 N.W.2d 286, 291 (
In Caulfield, the supreme
court noted that harmless-error analysis is not a matter of “analyz[ing]
whether a jury would have convicted the defendant without the error, [but]
rather . . . whether the error reasonably could have impacted upon
the jury’s decision.” Caulfield, 722 N.W.2d at 314 (alterations
and omission in original) (quoting
Although these are clearly sufficient to support the finding of guilt, they each are of lesser persuasive quality than the lab report, which was relied on by the state to be the definitive evidence of the identification of the substance as cocaine. We conclude that the erroneous admission of the report was not harmless beyond a reasonable doubt.
Caulfield, 722 N.W.2d at 317.
Sickmann was convicted of driving while impaired under Minn. Stat. § 169A.20, subd. 1(1) (2002), and driving with an alcohol concentration of .10 or more as measured within two hours of driving in violation of Minn. Stat. § 169A.20, subd. 1(5) (2002). Without the blood sample or the testimony from the state’s expert who analyzed the blood sample and concluded that it contained an alcohol concentration of .15, the remaining evidence is not clearly sufficient to support the finding of guilt. Therefore, we cannot conclude that the erroneous admission of the medical-personnel certificate was harmless error beyond a reasonable doubt. Because Sickmann’s right to confrontation was violated, we reverse and remand for a new trial.
Sickmann also asserts that
the district court abused its discretion in allowing the state’s expert, Joseph
Yoch, to testify regarding the utilization of retrograde extrapolation to
determine the alcohol concentration within two hours of driving. Because
this issue may arise at the retrial of this matter, we address the merits of
the challenge raised. The district court has broad discretion to admit
expert testimony. State v. Lopez-Rios, 669 N.W.2d 603, 612 (
Having determined that this
matter is to be reversed and remanded for a new trial, it is not necessary for
us to address the remaining issues raised by Sickmann. Nonetheless, we
note that his constitutional argument of coercion fails because it was
addressed and resolved contrary to his position in State v. Mellett, 642
N.W.2d 779, 784-85 (Minn. App. 2002), review denied (Minn. July 16,
2002). Additionally, Sickmann argues that State v. Banken, 690
N.W.2d 367, 371 (Minn. App. 2004), review denied (
Reversed and remanded.
*Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to Minn. Const. art. VI, § 10.
 In 2004, the legislature amended this statute
by lowering the alcohol concentration limit from .10 to .08, but the amendment
did not take effect until August 1, 2005.
Minn. Stat. § 634.15, subd. 1(b) (2004), makes admissible:
(b) a report of a blood sample withdrawn under the implied consent law if:
(i) The report was prepared by the person who administered the test;
(ii) The person who withdrew the blood sample was competent to administer the test under section 169A.51, subdivision 7; and
(iii) The report was prepared consistent with any applicable rules promulgated by the commissioner of public safety[.]