foundational requirement in North Dakota

2002Phipps, on the other hand, argues the Intoxilyzer test is not finally administered *712 until the room air test is completed, and that the room air test was not completed within the two hours prescribed by the statute. [¶ 27] In Moser, 369 N.W.2d at 653 , we held "[a]bsent testimony by the state toxicologist, the foundational requirement necessary to show fair administration 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." [¶ 28] In Salter v. Hjelle, 415

2002Phipps, on the other hand, argues the Intoxilyzer test is not finally administered until the room air test is completed, and that the room air test was not completed within the two hours prescribed by the statute. [¶ 27] In Moser, 369 N.W.2d at 653 , we held “[a]bsent testimony by the state toxicologist, the foundational requirement necessary to show fair administration 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.” [¶ 28] In Salter v. Hjelle, 415 N.W.2

2019This Court reiterated its prior holding that "[u]nless 'the State Toxicologist includes in the approved method ... 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 requirement for proving fair administration.' " Id . at ¶ 12 (quoting City of Bismarck v. Bosch , 2005 ND 12 , ¶ 11, 691 N.W.2d 260 ).

2019This Court reiterated its prior holding that "[u]nless 'the State Toxicologist includes in the approved method ... 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 requirement for proving fair administration.' " Id . at ¶ 12 (quoting City of Bismarck v. Bosch , 2005 ND 12 , ¶ 11, 691 N.W.2d 260 ).

2012The signed statement is akin to an affidavit, which is testimonial, see Crawford, 541 U.S. at 51-52 , 124 S.Ct. 1354 , because it is a “solemn declaration or affirmation made for the purpose of establishing or proving” that the blood sample was properly obtained.

2012The signed statement is akin to an affidavit, which is testimonial, see Crawford, 541 U.S. at 51-52 , 124 S.Ct. 1354 , because it is a “solemn declaration or affirmation made for the purpose of establishing or proving” that the blood sample was properly obtained.

2005See also City of Bismarck v. Bosch , 2005 ND 12, ¶ 11 (concluding analytical report and directive “that a standard solution may be used for up to 50 tests is not a part of the approved method” and proof of the number of tests is not a prerequisite to showing fair administration of the test or to admission of the test results); Kiecker v. North Dakota Dep’t of Transp. , 2005 ND 23, ¶ 13 (holding recalibration of Intoxilyzer machines is not part of the method prescribed by the State Toxicologist and proof of recalibration is not a foundational requirement for admission of an Intoxilyzer test res

2005See also City of Bismarck v. Bosch, 2005 ND 12, f 11 (concluding analytical report and directive “that a standard solution may be used for up to 50 tests is not a part of the approved method” and proof of the number of tests is not a prerequisite to showing fair administration of the test or to admission of the test results); Kiecker v. North Dakota Dep’t of Transp., 2005 ND 23, ¶ 13 (holding recalibration of Intoxilyzer machines is not part of the method prescribed by the State Toxicologist and proof of recalibration is not a foundational requirement for admission of an Intoxilyzer test resul

2012Thompson , 2010 ND 10, ¶ 19 , 777 N.W.2d 617 (citations omitted); see also State v. Buchholz , 2004 ND 77, ¶ 9 , 678 N.W.2d 144 ; State v. Anderson , 2003 ND 30, ¶ 7 , 657 N.W.2d 245 . [¶11] In this case, as in Thompson , Tresenriter failed to renew his foundational objection when the evidence was offered at trial, even though the district court in denying the pretrial motion specifically indicated that the foundational challenge could be raised again at trial.

2012Thompson, 2010 ND 10, ¶ 19 , 777 N.W.2d 617 (citations omitted); see also State v. Buchholz, 2004 ND 77, ¶9 , 678 N.W.2d 144 ; State v. Anderson, 2003 ND 30, ¶ 7 , 657 N.W.2d 245 . [¶ 11] In this case, as in Thompson, Tresenriter failed to renew his foundational objection when the evidence was offered at trial, even though the district court in denying the pretrial motion specifically indicated that the foundational challenge could be raised again at trial.

2012Thompson, 2010 ND 10, ¶ 19 , 777 N.W.2d 617 (citations omitted); see also State v. Buchholz, 2004 ND 77, ¶9 , 678 N.W.2d 144 ; State v. Anderson, 2003 ND 30, ¶ 7 , 657 N.W.2d 245 . [¶ 11] In this case, as in Thompson, Tresenriter failed to renew his foundational objection when the evidence was offered at trial, even though the district court in denying the pretrial motion specifically indicated that the foundational challenge could be raised again at trial.

2012Thompson, 2010 ND 10, ¶ 19 , 777 N.W.2d 617 (citations omitted); see also State v. Buchholz, 2004 ND 77, ¶9 , 678 N.W.2d 144 ; State v. Anderson, 2003 ND 30, ¶ 7 , 657 N.W.2d 245 . [¶ 11] In this case, as in Thompson, Tresenriter failed to renew his foundational objection when the evidence was offered at trial, even though the district court in denying the pretrial motion specifically indicated that the foundational challenge could be raised again at trial.

2012Thompson , 2010 ND 10, ¶ 19 , 777 N.W.2d 617 (citations omitted); see also State v. Buchholz , 2004 ND 77, ¶ 9 , 678 N.W.2d 144 ; State v. Anderson , 2003 ND 30, ¶ 7 , 657 N.W.2d 245 . [¶11] In this case, as in Thompson , Tresenriter failed to renew his foundational objection when the evidence was offered at trial, even though the district court in denying the pretrial motion specifically indicated that the foundational challenge could be raised again at trial.

2012Thompson, 2010 ND 10, ¶ 19 , 777 N.W.2d 617 (citations omitted); see also State v. Buchholz, 2004 ND 77, ¶9 , 678 N.W.2d 144 ; State v. Anderson, 2003 ND 30, ¶ 7 , 657 N.W.2d 245 . [¶ 11] In this case, as in Thompson, Tresenriter failed to renew his foundational objection when the evidence was offered at trial, even though the district court in denying the pretrial motion specifically indicated that the foundational challenge could be raised again at trial.

1996We disagree. “[A] proper chain of custody is a foundational requirement to account for the whereabouts of physical evidence up until the time it is admitted at trial to ensure that the physical evidence is in substantially the same condition at the time it is admitted into evidence.” State v. Haugen, 448 N.W.2d 191, 196 (N.D.1989); see also State v. Bohe, 447 N.W.2d 277, 279 (N.D.1989).

1989See State v. Bohe, 447 N.W.2d 277 (N.D.1989); State v. Skjonsby, 319 N.W.2d 764 (N.D.1982).

1989We have held that a proper chain of custody is a foundational requirement to account for the whereabouts of physical evidence up until the time it is admitted at trial to insure that the physical evidence is in "substantially the same condition at the time it is admitted into evidence." State v. Skjonsby, 319 N.W.2d 764, 789 (N.D.1982).

1989Bohe bases his argument on insufficient chain of custody grounds claiming: (1) that the State did not prove a chain of custody from the time of the commission of the offense to the time of trial and (2) that the State failed to prove the tire iron was the same one used in the Community Center burglary- We have held that a proper chain of custody is a foundational requirement to account for the whereabouts of physical evidence up until the time it is admitted at trial to insure that the physical evidence is in “substantially the same condition at the time it is admitted into evidence.” State v.

2017See Ashwander v. TVA , 297 U.S. 288, 345-47 , 56 S. Ct. 466 , 80 L.

2017See Ashwander v. TVA , 297 U.S. 288, 345-47 , 56 S. Ct. 466 , 80 L.

2017Xiong v. Lynch, 836 F.3d 948, 950 (8th Cir. 2016). [¶ 31] The Eighth Circuit has explained the “foundational principle in our legal system,” saying: It is a foundational principle in our legal system, enunciated by Justice Brandéis in a familiar concurrence, that courts must make every effort to avoid deciding novel constitutional questions.

2017Xiong v. Lynch , 836 F.3d 948, 950 (8th Cir. 2016). [¶31] The Eighth Circuit has explained the “foundational principle in our legal system,” saying: It is a foundational principle in our legal system, enunciated by Justice Brandeis in a familiar concurrence, that courts must make every effort to avoid deciding novel constitutional questions.

2015Dep’t of Transp., 2015 ND 104, ¶¶ 19-21, 25-28 , 862 N.W.2d 785 .

2015Dep’t of Transp., 2015 ND 104, ¶¶ 19-21, 25-28 , 862 N.W.2d 785 .

2002Phipps, on the other hand, argues the Intoxilyzer test is not finally administered *712 until the room air test is completed, and that the room air test was not completed within the two hours prescribed by the statute. [¶ 27] In Moser, 369 N.W.2d at 653 , we held "[a]bsent testimony by the state toxicologist, the foundational requirement necessary to show fair administration 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." [¶ 28] In Salter v. Hjelle, 415

2002Phipps, on the other hand, argues the Intoxilyzer test is not finally administered until the room air test is completed, and that the room air test was not completed within the two hours prescribed by the statute. [¶ 27] In Moser, 369 N.W.2d at 653 , we held “[a]bsent testimony by the state toxicologist, the foundational requirement necessary to show fair administration 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.” [¶ 28] In Salter v. Hjelle, 415 N.W.2

1999Bd. of Rev., 721 A.2d 70, 73 (Pa.Commw.Ct.1998) (stating gaps in the chains of custody go to only the weight of the evidence, not admissibility, but where a sample is not taken by the laboratory which prepared the report the chain of custody must be independently proven before the report may be admitted); see also State v. Huffman, 542 N.W.2d 718, 721 (N.D.1996) (stating a proper chain of custody is a foundational requirement to account for the whereabouts of physical evidence up until the time it is admitted at trial, but recognizing defects in the chain of custody go to the weight of the evi

1999Bd. of Rev., 721 A.2d 70, 73 (Pa.Commw.Ct.1998) (stating gaps in the chains of custody go to only the weight of the evidence, not admissibility, but where a sample is not taken by the laboratory which prepared the report the chain of custody must be independently proven before the report may be admitted); see also State v. Huffman, 542 N.W.2d 718, 721 (N.D.1996) (stating a proper chain of custody is a foundational requirement to account for the whereabouts of physical evidence up until the time it is admitted at trial, but recognizing defects in the chain of custody go to the weight of the evi

1996We disagree. “[A] proper chain of custody is a foundational requirement to account for the whereabouts of physical evidence up until the time it is admitted at trial to ensure that the physical evidence is in substantially the same condition at the time it is admitted into evidence.” State v. Haugen, 448 N.W.2d 191, 196 (N.D.1989); see also State v. Bohe, 447 N.W.2d 277, 279 (N.D.1989).

1987NOTES [1] In Hanson we cited Wanna v. Miller, 136 N.W.2d 563 (N.D.1965) and Erickson v. North Dakota Workmen's Compensation Bureau, 123 N.W.2d 292 (N.D.1963), as recognizing "the possibility that a blood sample may become contaminated before it reaches the laboratory for chemical analysis." In Erickson, 123 N.W.2d 292, 296 (N.D.1963), we stated the foundational requirement for the admissibility of blood-alcohol test results as follows: "When an object is being used in evidence to prove a fact with which it is related as of a previous time, it is not competent evidence unless it is first shown

1987NOTES [1] In Hanson we cited Wanna v. Miller, 136 N.W.2d 563 (N.D.1965) and Erickson v. North Dakota Workmen's Compensation Bureau, 123 N.W.2d 292 (N.D.1963), as recognizing "the possibility that a blood sample may become contaminated before it reaches the laboratory for chemical analysis." In Erickson, 123 N.W.2d 292, 296 (N.D.1963), we stated the foundational requirement for the admissibility of blood-alcohol test results as follows: "When an object is being used in evidence to prove a fact with which it is related as of a previous time, it is not competent evidence unless it is first shown

1982See State v. Lange, 255 N.W.2d 59 (N.D.1977); Gleson v. Thompson, 154 N.W.2d 780 (N.D.1967).