Gussiaas v. Neustel, 2011 ND 133

Background

Stroh was convicted by jury of driving under the influence based on an Intoxilyzer 5000 test.
The first breath test resulted in a BAC of 0.16 after Stroh was arrested on Sept. 9, 2009.
The State offered the Intoxilyzer test record at trial; Stroh challenged fair administration under the methods approved by the State Toxicologist.
Stroh argued the arresting officer left him unattended within 20 minutes before the test, and that chewing tobacco could have affected results.
The district court admitted the test record, found fair administration, and denied post-trial motions; the jury returned a guilty verdict.
On appeal, the court reviewed whether the test was scrupulously compliant with the approved method and admissible under N.D.C.C. § 39-20-07.

Issues

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether Intoxilyzer results were admissible despite claimed deviations	Stroh argues the test did not follow approved methods, failing fair administration.	Stroh contends absence of scrupulous compliance due to unattended periods and tobacco concern.	Yes; district court did not abuse discretion; test fair and admissible.
Whether the 20-minute waiting period was scrupulously followed	Stroh asserts evidence shows leaving him unattended violated the waiting requirement.	State contends the waiting period was evidenced by the officer’s testimony and overall control of the process.	Yes; district court reasonably inferred scrupulous compliance.
Whether the combination of documentary foundation and testimony can prove fair administration	Stroh argues the State failed to prove fair administration with consistent procedures.	State may rely on both documentary and testimonial evidence to prove fair administration.	Yes; the court allowed mixed proof and upheld admission.

Key Cases Cited

Steinmeyer v. Dep’t of Transp., 2009 ND 126, 768 N.W.2d 491 (ND 2009) (scrupulous, not hypertechnical, compliance; standard for fair administration)
Buchholtz v. Director, North Dakota Dep’t Transp., 2008 ND 53, 746 N.W.2d 181 (ND 2008) (rejects hypertechnical reading of procedures)
Henderson v. Director, N.D. Dep’t Transp., 2002 ND 44, 640 N.W.2d 714 (ND 2002) (foundation for admissibility; test must be properly obtained and fairly administered)
Ringsaker v. Director, N.D. Dep’t Transp., 1999 ND 127, 596 N.W.2d 328 (ND 1999) (foundation requirements for fair administration; testimony or documents may establish validity)
Lee v. North Dakota Dep’t of Transp., 2004 ND 7, 673 N.W.2d 245 (ND 2004) (purpose of § 39-20-07 is to ease admissibility while assuring fairness)
City of Bismarck v. Bosch, 2005 ND 12, 691 N.W.2d 260 (ND 2005) (addressing admissibility framework for chemical tests)
State v. Gietzen, 2010 ND 82, 786 N.W.2d 1 (ND 2010) (admissibility and fair administration standards for breath tests)
State v. Erickson, 517 N.W.2d 646, 648-49 (N.D. 1994) (ND 1994) (preliminary admissibility question; test fair if conducted per approved methods)
State v. Zink, 519 N.W.2d 581, 583 (N.D. 1994) (ND 1994) (test's admissibility as a preliminary question; jury weighs weight of results)
State v. Vogel, 467 N.W.2d 86, 91 (N.D. 1991) (ND 1991) (procedural standards for admissibility of chemical test results)
State v. Zimmerman, 516 N.W.2d 638, 641 (N.D. 1994) (ND 1994) (statutory exceptions to hearsay; documentary foundation permissible)
State v. Lamb, 541 N.W.2d 457, 462-63 (N.D. 1996) (ND 1996) (admissibility is a preliminary question; weight for jury after admission)