WEATHERS v. PETERS, 2001 ND 23

625 N.W.2d 264

Jon Weathers and Vickie Weathers, Individually and as Husband and Wife, and as Natural Parents and Guardians of Nathan Weathers, a minor, Kelly Weathers, and Andrea Schmidt, Plaintiffs and Appellants v. Leonard J. Peters and Linda L. Peters, Husband and Wife, d/b/a Peters Enterprises; and Larry D. Crabbe, Defendants and Appellees

No. 20000141Supreme Court of North Dakota.
Decided February 15, 2001

NOTE: SUMMARY OPINION, SEE NORTH DAKOTA RULES OF APPELLATE PROCEDURE, RULE 35.1

Appeal from the District Court of Pierce County, Northeast Judicial District, the Honorable Lee A. Christofferson, Judge.

AFFIRMED.

MaryAnn Leavitt (argued) and Jeff Rotering (on brief), Rotering Law Office, 215 S. Main, P.O. Box 1379, Hettinger, ND 58639-1379, for plaintiffs and appellants.

Richard H. McGee II, McGee, Hankla, Backes Dobrovolny, Norwest Bank Building, P.O. Box 998, Minot, ND 58702-0998, for defendants and appellees.

Per Curiam.

[¶ 1] Jon and Vickie Weathers appeal from the trial court’s denial of a Motion to Exclude Evidence of the results of a Blood Alcohol Concentration (“BAC”) test and from the Judgment on Jury Verdict dismissing their claims on the merits and with prejudice. The Weathers challenge admission of the BAC test results into evidence, arguing the test was not fairly administered when alcohol swabs were used to sterilize the same arm nearly two hours prior to drawing blood for the BAC test. We conclude the trial court did not abuse its discretion in admitting the BAC test results into evidence, after a proper foundation was established by certification of scrupulous compliance with test procedures and by expert testimony. Because the Weathers failed to introduce adequate evidence to rebut the foundation of fair administration of the BAC test, we summarily affirm under N.D.R.App.P. 35.1(a)(4).

[¶ 2] Gerald W. VandeWalle, C.J.

Carol Ronning Kapsner

Dale V. Sandstrom

William A. Neumann

Mary Muehlen Maring