Ringsaker v. Director, North Dakota Department of Transportation

1999 ND 127, 596 N.W.2d 328, 1999 N.D. LEXIS 147, 1999 WL 487159
CourtNorth Dakota Supreme Court
DecidedJuly 13, 1999
Docket980369
StatusPublished
Cited by34 cases

This text of 1999 ND 127 (Ringsaker v. Director, North Dakota Department of Transportation) is published on Counsel Stack Legal Research, covering North Dakota Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Ringsaker v. Director, North Dakota Department of Transportation, 1999 ND 127, 596 N.W.2d 328, 1999 N.D. LEXIS 147, 1999 WL 487159 (N.D. 1999).

Opinion

VANDE WALLE, Chief Justice.

[¶ 1] The North Dakota Department of Transportation (Department) appealed from a district court judgment reversing the administrative hearing officer’s decision to suspend Jolynn N. Ringsaker’s driving privileges for ninety-one days for driving under the influence of alcohol. We affirm.

[¶ 2] North Dakota Highway Patrol Trooper Tanya Sprecher arrested Ring-saker for driving under the influence of alcohol. Ringsaker was transported to the Fargo Police Department where she consented to an Intoxilyzer test. The Intoxi-lyzer test administered by Trooper Sprecher recorded Ringsaker’s blood alcohol concentration at .11 percent by weight. A Report, Notice and temporary operator’s permit was issued to Ringsaker under N.D.C.C. § 39-20-03.1(1). Ringsaker requested and received an administrative hearing.

[¶ 3] During the hearing, Trooper Sprecher testified she followed the state toxicologist’s approved method for conducting a breath test. According to Trooper Sprecher, when the Intoxilyzer machine is working properly it prints the testing date in numerical form. However, in the present case, the Intoxilyzer machine incorrectly printed “22/⅜0/17” where the date should have been. Trooper Sprecher stated she was not aware of this until the hearing. Over the objection of Ringsaker’s attorney, the hearing officer admitted the Intoxilyzer test result into evidence. At the conclusion of the administrative hearing, the hearing officer issued his findings of fact, conclusions of law and decision suspending Ringsaker’s driving privileges, determining:

The Intoxilyzer incorrectly printed the date of the test. The approved method requires that if the test information printed is not legible the test information should be reprinted. The test information on Exhibit 11 is legible. There is no difficulty in reading the information printed by the Intoxilyzer. For some reason the date is not accurate. However Exhibit 11 is the test information from the test conducted on Ms. Ringsaker by Trooper Sprecher on June 24,1998.

[¶ 4] Ringsaker appealed to the district court which reversed the license suspension. The district court’s order read: “This Court is of the opinion that the State’s failure to establish an accurate date on the results of the alcohol concentration test creates a doubt. However small that doubt may be as to the correctness of the entire test, this Court cannot conclude that the test was fairly administered.” The Department appealed to this Court.

[¶ 5] The Administrative Agencies Practices Act, N.D.C.C. ch. 28-32, governs the review of administrative license suspensions. Luebke v. North Dakota Dept. of Transp., 1998 ND 110, ¶ 8, 579 N.W.2d 189. Our review is limited to the record before the agency, and we do not review the decision of the district court. Id. Section 28-32-19, N.D.C.C., requires us to affirm the agency’s order unless we find any of the following:

1. The order is not in accordance with the law.
2. The order is in violation of the constitutional rights of the appellant.
3. Provisions of this chapter have not been complied with in the proceedings before the agency.
4. The rules or procedure of the agency have not afforded the appellant a fair hearing.
5. The findings of fact made by the agency are not supported by a preponderance of the evidence.
*330 6. The conclusions of law and order of the agency are not supported by its findings of fact. '

Id. When reviewing the agency’s factual findings, we do not make independent findings of fact or substitute our judgment for that agency, but determine only whether a reasoning mind reasonably could have determined the factual conclusions were proven by the weight of the evidence from the entire record. Borowicz v. North Dakota Dept. of Transp., 529 N.W.2d 186, 187 (N.D.1995).

[¶ 6] The Department contends Ringsaker failed to show the scientific reliability of the test was affected by the Intoxilyzer machine not printing the accurate date on the test record.

[¶ 7] Section 39-20-07(5), N.D.C.C., governs the admissibility of Intoxilyzer test results. The statute provides, in pertinent part,:

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 purpose of section 39-20-07, N.D.C.C., is to ease the requirements for the admissibility of chemical test results while ensuring that the test upon which the results are based is fairly administered. See, e.g., Kummer v. Backes, 486 N.W.2d 252, 255 (N.D.1992).

[¶ 8] In Moser v. North Dakota State Highway Com’r., 369 N.W.2d 650, 653 (N.D.1985), we discussed the foundational requirements necessary to show a breathalyzer test is “fairly administered”:

The foundational requirements ... may be met either through testimony of the state toxicologist or through the introduction of certified copies of approved methods and techniques filed by the state toxicologist with the clerk of the district court pursuant to N.D.C.C. § 39-20-07. Absent 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. Thus, reliability and accuracy of the results are established by demonstrating compliance with the methods adopted by the state toxicologist. Because the statute permits admission of such evidence without expert witness testimony to establish accuracy and reliability, all the requirements of the statute must be scrupulously met to ensure a uniform basis of testing throughout the State and fair administration.

(Citations omitted); See also State v. Schwalk, 430 N.W.2d 317, 323 (N.D.1988). Therefore, without strict compliance with the approved method, the scientific accuracy of the test cannot be established without expert testimony. Bryl v. Backes, 477 N.W.2d 809, 813 (N.D.1991). When the state toxicologist testifies at trial, that testimony takes precedence over the approved methods. State v. Puhr, 316 N.W.2d 75, 77 (N.D.1982).

[¶ 9] The relevant portion of the Approved Method to Conduct Breath Test with Intoxilyzer provides, in part,:

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Bluebook (online)
1999 ND 127, 596 N.W.2d 328, 1999 N.D. LEXIS 147, 1999 WL 487159, Counsel Stack Legal Research, https://law.counselstack.com/opinion/ringsaker-v-director-north-dakota-department-of-transportation-nd-1999.