38.02.200 Interpretation of Chemical Tests

Upon the trial of any civil or criminal action or proceeding arising out of acts alleged to have been committed by any person while driving or in actual physical control of a motor vehicle while under the influence of intoxicating liquor, drugs, or a combination thereof, evidence of the amount of alcohol, drugs, or a combination thereof in the person's blood at the time of the act alleged as shown by a chemical analysis of the blood, breath, saliva, or urine is admissible. For the purpose of this section:

(a) A person having, at that time, an alcohol concentration of not more than five one-hundredths of one percent by weight is presumed not to be under the influence of intoxicating liquor.

(b) Evidence that there was at that time more than five one-hundredths of one percent by weight alcohol concentration in a person is relevant evidence, but it is not to be given prima facie effect in indicating whether the person was under the influence of intoxicating liquor.

(c) A person having an alcohol concentration of at least ten one-hundredths of one percent by weight at the time of the performance of a chemical test within two hours after driving or being in physical control of a vehicle is under the influence of intoxicating liquor at the time of driving or being in physical control of a vehicle.

(d) Alcohol concentration is based upon grams of alcohol per one hundredth cubic centimeters of blood or grams of alcohol per two hundred ten liters of alveolar air or grams of alcohol per sixty-seven (67) cubic centimeters of urine.

(e) 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 toxicologist. The state toxicologist is authorized to approve satisfactory devices and methods of chemical analysis and determine the qualifications of individuals to conduct such analysis, and shall issue a certificate to all qualified operators who exhibit the certificate upon demand of the person requested to take the chemical test.

(f) The state toxicologist may appoint, train, certify, and supervise field inspectors of breath testing equipment and its operation, and the inspectors shall report the findings of any inspection to the state toxicologist for appropriate action. Upon approval of the methods or devices, 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 clerk of the Tribal Court shall include in the record:

(1) An annual register of the specific testing devices currently approved, including serial number, location, and the date and the results of last inspection.

(2) An annual register of currently qualified and certified operators of the devices, stating the date of certification and its expiration.

(3) The operational checklist and forms prescribing the methods currently approved 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 determines it to be necessary and any supplemental material has the same force and effect as the material that it supplements.

(g) Copies of the records referred to in Subsections (e) and (f), certified by the clerk of the Tribal Court, must be admitted as prima facie evidence of the matters stated in the records.

(h) A certified copy of the analytical report of a Blood, urine, or saliva analysis issued by the office of the state toxicologist must be accepted as prima facie evidence of the results of a chemical analysis performed under this chapter.

(i) Notwithstanding any statute or rule to the contrary, the defendant in any criminal proceeding may subpoena, without cost to the defendant, the person who conducted the chemical analysis referred to in this section to testify at the trial on the issue of the amount of alcohol, drugs, or a combination thereof in the defendant's blood, breath, saliva, or urine at the time of the alleged act.

(j) A signed statement from the nurse or medical technician drawing the blood sample for testing as set forth in Subsection (e) is prima facie evidence that the blood sample was properly drawn and no further foundation for the admission of such evidence may be required.