862 N.W.2d 785
N.D.2015Background
- On Oct. 5, 2013, Filkowski was stopped after erratic driving; officers observed signs of intoxication, he failed field sobriety tests, an onsite breath screen read 0.151 and a subsequent blood test showed 0.166 g/100 ml.
- Filkowski was arrested, submitted to a blood draw, and the state crime laboratory issued an analytical report showing 0.166 g/100 ml.
- Filkowski requested an administrative hearing and argued the DOT lacked authority to suspend his license because the specimen submitter’s checklist (bottom portion of Form 104) was not forwarded to the DOT director.
- He also challenged admission of the analytical report on three grounds: use of the term “ethanol” (arguing it differs from statutory language), lack of proof the approved method was used, and lack of proof who performed the analysis.
- The hearing officer admitted the analytical report and foundational documents, found the testing complied with approved methods and was performed by an authorized analyst, and suspended Filkowski’s license for 91 days; the district court affirmed.
Issues
| Issue | Filkowski’s Argument | Director’s Argument | Held |
|---|---|---|---|
| Whether DOT had statutory authority to suspend absent the specimen submitter’s checklist being forwarded | Checklist must be forwarded under §39-20-03.1(4); without it DOT lacks required evidence of approved method | Statute requires only a certified copy of the analytical report for blood tests be forwarded; checklist need not be sent to confer suspension authority | DOT has authority; statute requires only the certified analytical report be sent, not the submitter’s checklist |
| Whether foundational documents sufficiently showed the approved laboratory method was used | Report references “Rev. 0.1” while foundational exhibit title differs slightly, so method linkage is insufficient | Foundational exhibit (with State Toxicologist certification) and revision numbering show the same approved method used | Admissible; hearing officer did not abuse discretion—exhibit and certification adequately establish approved method |
| Whether use of the term “ethanol” in the report required expert testimony to link to statutory “alcohol” | “Ethanol” differs from statutory language; expert needed to explain equivalence | “Alcohol” in statute is given its plain meaning, which includes ethanol; no expert needed | No expert required; common meaning of alcohol includes ethanol, so report admissible |
| Whether report establishes the analyst was authorized to perform the test | Report signature does not explicitly state who performed analysis | Affidavit and certified list of approved analysts (including Hieb), and Hieb’s affidavit authenticate the report and her certification | Admissible; affidavit and certified list create prima facie evidence that an authorized analyst performed the test |
Key Cases Cited
- Barros v. N.D. Dep’t of Transp., 751 N.W.2d 261 (N.D. 2008) (standard for judicial review of DOT license suspensions)
- Wingerter v. N.D. Dep’t of Transp., 530 N.W.2d 362 (N.D. 1995) (statute requires transmission of certified analytical report for blood tests, not all test records)
- Jordheim v. State, 508 N.W.2d 878 (N.D. 1993) (Form 104 and certified records as foundation to admit blood-test reports)
- Painte v. Director, Dep’t of Transp., 832 N.W.2d 319 (N.D. 2013) (when documentary evidence is insufficient, expert testimony required to prove compliance with approved methods)
- Keller v. N.D. Dep’t of Transp., 858 N.W.2d 316 (N.D. 2015) (agency must meet statutory prerequisites to suspend; Form 104 directions establish fair administration when followed)