City of Lincoln v. Johnston
2012 ND 139
| N.D. | 2012Background
- Thorsrud was arrested for DUI in February 2011 and transported to a law enforcement center.
- An Intoxilyzer test was administered at 2:52 a.m. after a 20-minute waiting period; the record states the mouth was cleared at 2:31 a.m.
- The test result showed a BAC of .182 and a notice to suspend driving privileges was issued.
- At the administrative hearing, Thorsrud testified she was allowed to use the restroom unsupervised during the waiting period.
- The hearing officer suspended Thorsrud’s license for two years; the district court reversed, and the Department appealed.
- The issue revolves around whether the twenty-minute waiting period was properly ascertained and whether the test was fairly administered under the approved method.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Was the district court correct to reverse based on weight of the evidence? | Thorsrud rebutted prima facie fair administration by showing deviation from the method. | The hearing officer’s finding that the twenty-minute wait was ascertained was supported by the record and weight of the evidence. | No; weight supported upholding the hearing officer’s finding. |
| Did the Intoxilyzer test meet admissibility requirements for fair administration? | Prima facie evidence established proper ascertainment of the twenty-minute period; Thorsrud rebutted with unsupervised restroom use. | Test and checklist admitted; officer followed the approved method; prima facie evidence supports fair administration. | Yes; test was admissible; fair administration could be inferred despite rebuttal. |
| Did Thorsrud properly rebut the prima facie evidence of fair administration? | Thorsrud showed deviation from the method by allowing unsupervised restroom use, negating the presumed fair administration. | Even with deviation, other evidence could support fair administration; the burden was on Thorsrud to show noncompliance. | Thorsrud rebutted the prima facie case; but the court concluded the record supported fair administration overall. |
Key Cases Cited
- Leno v. N.D. Dep’t of Transp., 2008 ND 10 (N.D. 2008) (governs judicial review of agency decisions and weight-of-the-evidence standard)
- Buchholtz v. N.D. Dep’t of Transp., 2008 ND 53 (N.D. 2008) (fair administration may not require hypertechnical compliance)
- State v. Zimmerman, 516 N.W.2d 638 (N.D. 1994) (prima facie evidence and burden to rebut presumption of fair administration)
- Salter v. Hjelle, 415 N.W.2d 801 (N.D. 1987) (importance of complete adherence to approved method for admissibility)
- Erickson, 517 N.W.2d 646 (N.D. 1994) (defendant must produce evidence showing not fairly administered when prima facie fair)
- Johnson, 2004 ND 59 (N.D. 2004) (inference acceptable when officer’s continuous observation is not shown)
- Stroh, 2011 ND 139 (N.D. 2011) (inference allowed regarding twenty-minute waiting period under facts)