870 N.W.2d 455
N.D.2015Background
- On July 31, 2014, James Kelly Leno was arrested for DUI; a blood test showed a BAC of 0.145%. Leno requested an administrative hearing to contest a 91-day suspension of his driving privileges.
- The arresting deputy completed the top portion of Form 104 (blood kit paperwork) but did not bring the bottom portion (the specimen submitter’s checklist) to the hearing; he kept it in his office.
- The hearing officer admitted into evidence the completed top portion and a blank copy of the full Form 104; the deputy reviewed the blank checklist at the hearing to refresh his memory and testified about the steps he performed when collecting/sealing/submitting the blood sample.
- Leno objected: (1) that the blank checklist improperly refreshed the officer’s memory and (2) that the hearing officer used leading questions and thus denied him a fair and impartial hearing; he also moved to dismiss because the completed submitter’s checklist was not submitted to the Department.
- The hearing officer found the deputy followed required procedures and suspended Leno’s privileges; the district court affirmed. The Supreme Court reviewed whether the administrative hearing was fair and whether the officer’s testimony sufficiently established scrupulous compliance with the checklist.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Sufficiency of testimony to prove scrupulous compliance with Form 104 checklist | Leno: officer’s testimony was insufficient because the completed checklist was not produced and the officer didn’t use the exact language from the form | DOT: testimony from participants, including the specimen submitter, may prove scrupulous compliance when the checklist isn’t submitted | Held: Testimony was sufficient—officer’s descriptions of opening the kit, sealing tube, leaving absorbent sheet, placing paperwork in box, sealing and retaining box supported scrupulous compliance. |
| Proper method to refresh witness memory | Leno: officer should have used the completed checklist to refresh memory, not a blank form | DOT: blank form admitted without objection; witness may use it to refresh memory under Rules | Held: Hearing officer did not abuse discretion in allowing the deputy to refresh his memory with the blank form; no claim the blank differed from the completed form. |
| Use of leading questions by the hearing officer | Leno: leading questions improperly elicited compliance testimony and denied a fair hearing | DOT: leading questions were limited, many questions were non-leading, and leading questions may be permissible to refresh memory or develop testimony | Held: Leading questions did not deny a fair and impartial hearing; the officer’s questioning was within discretion and largely non-leading or necessary. |
| Procedural jurisdiction based on submission of checklist to DOT | Leno: move to dismiss because submitter’s checklist was not sent to the DOT, depriving DOT of jurisdiction | DOT: jurisdiction is not defeated where testimony establishes compliance and checklist absence is addressed at hearing | Held: Motion to dismiss properly overruled; jurisdiction and hearing were proper. |
Key Cases Cited
- Filkowski v. Dir., N.D. Dep’t of Transp., 2015 ND 104, 862 N.W.2d 785 (testimony from participants can prove scrupulous compliance when checklist absent)
- Kroschel v. Levi, 2015 ND 185, 866 N.W.2d 109 (standards for reviewing administrative revocation of driver’s license under N.D.C.C. § 28-32-46)
- Community Homes of Bismarck, Inc. v. Main, 2011 ND 27, 794 N.W.2d 204 (requirements and discretion for refreshing witness memory under N.D.R.Ev. 612)
- State v. Keller, 2013 ND 122, 833 N.W.2d 486 (analysis of sufficiency of testimony about checklist steps)
- Schlosser v. North Dakota Dep’t of Transp., 2009 ND 173, 775 N.W.2d 695 (example where perfunctory testimony was insufficient to show compliance)
- Dittus v. N.D. Dep’t of Transp., 502 N.W.2d 100 (administrative hearing officer’s dual roles do not automatically violate right to impartial hearing)