849 N.W.2d 248
N.D.2014Background
- Frank was stopped for speeding in Burleigh County and showed alcohol odor, bloodshot eyes, and failed field sobriety tests.
- He was arrested for DUI and consented to breath testing; the Intoxilyzer result showed a .12% BAC within two hours of driving.
- At an administrative hearing, Frank objected to admitting the Intoxilyzer results for lack of proper foundation; the objection was overruled.
- The hearing officer suspended Frank’s driving privileges for 91 days; the district court upheld the suspension on review.
- The issue on appeal is whether proper foundation for the Intoxilyzer results was laid under N.D.C.C. § 39-20-07 and whether the operator/designee was properly approved.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the Intoxilyzer results were admissible without proper foundation | Frank argues foundation was incomplete | The Department asserts approval by director/designee was met | Improper foundation; admission error |
| Whether the operator/designee approval was proven | Eder was not shown to be designee | Documents imply designee role but no proof at hearing | Not proven; admission flawed |
Key Cases Cited
- Painte v. Dir., Dep’t of Transp., 832 N.W.2d 319 (2013 ND 95) (requires proof that the issuing official is the director or designee for prima facie admissibility)
- State v. Jordheim, 508 N.W.2d 878 (N.D. 1993) (foundational elements include proper sample, fair administration, and proper approval of methods/devices/by designee)
- Buchholtz v. Dir., N.D. Dep’t of Transp., 746 N.W.2d 181 (2008 ND 53) (older precedent used to interpret designee authority under prior statute)
- Painte, 2013 ND 95, 832 N.W.2d 319 (2013 ND 95) (concurring/dissenting note on designee evidence for foundation)
- Sorenson v. Alinder, 793 N.W.2d 797 (2011 ND 36) (review standard under Administrative Agency Practice Act)