Thorsrud v. Director, North Dakota Department of Transportation
819 N.W.2d 483
| N.D. | 2012Background
- Thorsrud was arrested for DWI in Feb. 2011 and transported to a law enforcement center.
- The arresting officer administered an Intoxilyzer test after a 20-minute waiting period and recorded the method followed and mouth clearance times.
- Thorsrud testified she used the restroom unsupervised during the 20-minute period and did not place anything in her mouth.
- The hearing officer found the 20-minute wait was ascertained and the test followed the approved method.
- The district court reversed, and the Department appeals, arguing the 20-minute ascertainment was supported by the record and weight of the evidence.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the 20-minute waiting period was ascertained per the approved method. | Thorsrud rebutted prima facie fair administration by showing deviation (unsupervised restroom use). | Nielsen ascertained the 20-minute wait and followed the approved method. | Yes; district court erred; 20-minute ascertainment supported. |
| Whether Thorsrud’s rebuttal evidence sufficed to negate the prima facie fair administration. | Thorsrud’s unsupervised restroom use negated guaranteed fair administration. | Other evidence could still show fair administration; deviation alone not fatal. | Yes; evidence supported fair administration despite deviation. |
Key Cases Cited
- State v. Zimmerman, 516 N.W.2d 638 (N.D. 1994) (presumption of fair administration from the Intoxilyzer record; burden to rebut)
- Johnson v. N.D. Dep’t of Transp., 676 N.W.2d 807 (N.D. 2004) (inference of fair administration possible without continuous observation)
- Salter v. Hjelle, 415 N.W.2d 801 (N.D. 1987) (concern about missing steps in approved method; need complete verification)
- Buchholz v. N.D. Dep’t of Transp., 639 N.W.2d 490 (N.D. 2002) (approved method not necessarily hypertechnical; fair administration can be shown by other means)
- Erickson v. N.D. Dep’t of Transp., 517 N.W.2d 646 (N.D. 1994) (burden to rebut prima facie evidence; may rely on further testimony)
- State v. Stroh, 800 N.W.2d 276 (N.D. 2011) (court may infer twenty-minute period if no contrary evidence)
- State v. Schwalk, 430 N.W.2d 317 (N.D. 1988) (balance between efficiency and reliability of chemical tests)