Potratz v. North Dakota Department of Transportation
2014 ND 48
| N.D. | 2014Background
- Around 1:17 a.m. on Feb. 17, 2013, Deputy Lemieux stopped Potratz after observing driving problems and arrested him for DUI; on-site Alco-Sensor read .101 and an Intoxilyzer breath test at 2:00 a.m. read .094.
- The deputy completed a Report and Notice form that listed times (driving 1:17 a.m.; arrest 1:27 a.m.; test 2:00 a.m.), and in the test-result blank wrote ".094% BRAC." The date appears elsewhere on the form but not next to the test-result entry.
- Potratz requested an administrative hearing to contest suspension of his driving privileges; the hearing officer suspended his license and the district court affirmed.
- On appeal Potratz raised three main challenges: (1) the Report and Notice form failed to state the date the breath specimen was obtained; (2) the form’s notation ".094% BRAC" did not properly state a qualifying alcohol concentration of at least .08 by weight; and (3) inconsistency in recorded body weight (180 v. 170 lbs.) undermined reliability of the Intoxilyzer result.
- The hearing officer admitted the Intoxilyzer Test Record and Checklist; the deputy testified he followed the State Toxicologist’s approved method and that subject weight entry does not affect reported breath alcohol concentration.
Issues
| Issue | Potratz's Argument | DOT's Argument | Held |
|---|---|---|---|
| Whether the Report & Notice lacked the date of the breath specimen so as to deprive the director of authority to suspend | The form didn’t state the test date in the test-result portion, so statutory requirements were unmet | Date is shown elsewhere on the form and the form reasonably informs the driver the test was within two hours | Court held the form was sufficiently clear; failure to repeat the date next to the result did not defeat authority to suspend |
| Whether the notation ".094% BRAC" failed to state a qualifying alcohol concentration by weight | The percent sign and "BRAC" could mislead or fail to state the statutory phrase "by weight" so the report is defective | The shorthand ".09 percent" or ".09%" and the BRAC notation reasonably convey breath alcohol concentration >= .08 | Court held the shorthand and BRAC notation adequately informed the driver and satisfied the purpose of the statute |
| Whether differing weights (180 v. 170 lbs.) show the Intoxilyzer was unreliable | The inconsistent weight entries show the machine/test record is untrustworthy and evidence is insufficient | Weight entry does not affect reported breath-alcohol concentration; testimony and approved method show fair administration | Court held the Intoxilyzer record was admissible and Potratz failed to rebut the prima facie validity of the test |
| Whether overall findings lacked a preponderance of evidence to support suspension | The combination of form defects and weight discrepancy undermines findings | The record (observations, field tests, Alco-Sensor, Intoxilyzer) supports probable cause and valid test within two hours | Court affirmed: findings supported by weight of the evidence and order upheld |
Key Cases Cited
- Pesanti v. N.D. Dep’t of Transp., 839 N.W.2d 851 (N.D. 2013) (standard of review for agency suspension decisions)
- Steinmeyer v. N.D. Dep’t of Transp., 768 N.W.2d 491 (N.D. 2009) (deference to agency fact findings; review standards)
- Knudson v. Dir., N.D. Dep’t of Transp., 530 N.W.2d 313 (N.D. 1995) (abuse of discretion standard for evidentiary rulings)
- Jorgensen v. N.D. Dep’t of Transp., 695 N.W.2d 212 (N.D. 2005) (Report-and-Notice must contain test result to inform driver)
- Aamodt v. N.D. Dep’t of Transp., 682 N.W.2d 308 (N.D. 2004) (statute’s mandatory items must be shown; avoid absurd results)
- Samdahl v. N.D. Dep’t of Transp., Dir., 518 N.W.2d 714 (N.D. 1994) (failure of strict compliance may be excused absent prejudice)
- Meyer, State v., 494 N.W.2d 364 (N.D. 1992) (distinguishing breath alcohol from blood-alcohol concentration)
- Ringsaker v. Dir., N.D. Dep’t of Transp., 596 N.W.2d 328 (N.D. 1999) (errors on Intoxilyzer printout may raise trustworthiness concerns)
- Buchholtz v. Dir., N.D. Dep’t of Transp., 746 N.W.2d 181 (N.D. 2008) (approved method must be followed but not hypertechnical compliance)
- Thorsrud v. Dir., N.D. Dep’t of Transp., 819 N.W.2d 483 (N.D. 2012) (driver must produce evidence of deviation to rebut prima facie fairness)
- Berger v. State Highway Comm’r, 394 N.W.2d 678 (N.D. 1986) (driver bears burden to discredit test accuracy)