concurring specially.
The record in this case reveals considerable posturing insofar as the responsibility for producing the list of directions for collection and submission of blood or other fluid specimens is concerned. Although the trial court gave defense counsel an opportunity to cross-examine the officer on the issue of the directions, defense counsel, presumably for tactical reasons, chose not to. The record reveals the prosecutor believed it was not the State’s responsibility to introduce testimony that the officer complied with the directions, but rather defense counsel’s burden. I agree with the result reached by the majority simply because this is a criminal case and the statutes and our previous caselaw indicate the prosecution is responsible for introducing the evidence necessary to prove the State’s case.
I cannot refrain from observing that there were some rather simple alternatives available, even at the time of trial and defense counsel’s objection to the introduction of the test results, to introduce this evidence. Section 39-20-07(5), N.D.C.C., provides in part that the State Toxicologist “is authorized to approve satisfactory devices and methods of chemical analysis ...” Section 39-20-07(6) provides for filing by the State Toxicologist a written record of approval with the clerk of the district court in each county, and subsection 7 of the same section provides that “Copies of the records referred to in subsections 5 and 6, certified by the clerk of the district court, must be admitted as prima facie evidence of the matters stated in the records.” Assuming Form 104, including the directions on the back thereof, was filed with the clerk of the district court, it seemingly would have been a simple matter to request a short recess, obtain the form, admit it into evidence, and proceed to question the officer as to whether or not he complied with those directions applicable to his role in obtaining and mailing the specimen.
In addition, the directions on Form 104 were recited in footnote 4 of State v. Reil, 409 N.W.2d 99 (N.D.1987), a decision which, the record reveals, was referred to and relied upon by the State, defense counsel, and the trial judge during the course of the trial. Defense counsel contends the directions in Reil may have been different from those in effect at the time the specimen in this case was obtained. Although defense counsel’s position may be seen as unduly technical, once the issue was raised I believe it was the State’s obligation to correct any deficiency in its evidence.