*1 SCHENSE, Edward L. Plaintiff Appellant, HJELLE, Highway
Walter Com-
missioner, Appellee. Defendant and No. 11063.
Civ.
Supreme Court of North Dakota.
April Town, Schoppert,
Thomas K. New for plaintiff appellant. Bothun, Gen.,
Myron Atty. E. Asst. Bis- marck, appellee. for defendant and GIERKE, Justice. appeals L.
Edward
Schense
from a dis-
judgment upholding
trict court
the North
Dakota State
Commissioner’s
(Commissioner)
suspend
decision
Schense’s driver’s license. We affirm.
During April
Schense was arrested
driving
while under the influence of
intoxicating liquor. An Intoxilyzer test ad-
arresting highway patrol-
ministered
man recorded Schense’s blood alcohol con-
percent. Following
at 0.15
an
centration
hearing
during which
highway patrolman
Schense
testi-
fied,
suspended
driving privileges
year.
for one
appeal
asserts on
that the sus-
pension should be reversed because there
inadequate
for the admis-
foundation
sion into evidence of the
results. He does not claim that there was
according
perform the test
a failure to
*2
Toxicologist’s Approved
by
Method
and with devices approved
the state
test,
toxicologist,
by
pos-
of
and
an individual
sessing
qualification
a
no evidence
introduced that the individ-
certificate of
to
during
Intoxilyz-
by
administer the test
ual “simulator”1 used
issued
the state
toxicologist.
toxicologist
The
by
had
or
state
approved
er test
been certified
is
authorized
satisfactory
to be
“device”
techniques, devices, and
Intoxilyzer
allegedly
used with the
as
and determine the
39-20-07(5)
required by
(6),
and
N.D.C.C.
§
qualifications of individuals to conduct
The
contends
stat-
analysis,
such
and shall issue a certifi-
requires
approval
ute
certification and
of
qualified
cate to all
operators....
i.e., Breatha-
devices,
only specific testing
sim-
lyzers
Intoxilyzers,
approval
and
and not the
“6.
of
...
the methods
devices,
ulator,
both,
of
or
auxiliary
techniques
which is a
and
quired
during
process
calibrating
ment used
the tests and
of
persons qualified
them,
to administer
devices.
toxicologist
prepare
shall
and
39-20-07(5)
(6),
The version of
and
§
approval
file written record of the
N.D.C.C., in
at the time
arrest
effect
of
the clerk
the district court in each
hearing, provided
per-
and administrative
county and shall
include
the record:
part:
tinent
A quarterly register
specif-
“a.
“5. The
results
currently approved,
ic
it is
number,
including
location,
and
properly
shown that
inspection.”
and
last
date
results of
obtained and the test was
admin-
istered, and if the test is
have
determining
shown to
In
whether
term
performed according
been
to methods
intended to include
jar-like
A1.
simulator is a
container in
a
ml
which
The standard solution of 500
of a ‘known’
standard "known” alcohol solution
It
is added.
concentration of alcohol is then added to this
Breathalyzers
Intoxilyzers
is attached to
and
simulator.”
sequence
purpose
Toxicologist’s
"Approved
for the
of sim
The State
Method to
ulating
Intoxilyzer” requires
breath
content to
the ac
alcohol
check
Conduct Breath Test with
curacy
verify
particu
testing proce-
and
the calibration of the
a simulator
use of
breath-testing
Approved
provides
lar
It is
2 Er
unit.
described in
dure. The
Method
in rele-
win,
Driving
part:
Defense of Drunk
Cases 22.04 at
vant
(3d
1985):
cleared,
pp.
22-36 and 22-38
ed.
has been
“After
chamber
completed by
room air test
has been
thermostatically
“The
heated
Simulator is
instrument,
display
will scroll ‘Please
agitation
sealed
constant
is
device with
which
Depress
Simulator
Start
Attach
Test
keep
heated to
contents of
alco-
water and
flashing
by
followed
'Attach Sim-
Switch’
temperature
±
hol at a
of
0.2°C.
mouth
34°C
attaching
Before
simulator to the
ulator’.
temperature
This
is verified
a calibrated
through
blow
simulator for a
is
solu-
thermometer which
inserted into the
seconds,
simulator to
few
then attach the
tion.
vapor port
Intoxilyzer.
simulator
on
IIA
"The Mark II Simulator and the Mark
temperature
down the
Write
simulator
on the
Alcohol Breath Simulator are manufactured
depress
the ‘Start Test’ switch.
They
Smith &
Electronics
Wesson
Co.
vapor
being
simulator solution
intro-
As the
position
have minor
such
differences
Intoxilyzer,
display
into the
will
duced
points
type
outlet
used.
thermometer
Sol.’. After
simulator
read ‘Std.
the standard
prong grounded plug
The Mark
a 3
IIA uses
complete
displayed.
will be
test is
the result
comply with O.S.H.A. and National Electrical
display
directive
will scroll the
‘Please
requirements,
stan-
Code
the older units had
Depress
Detach Simulator and
Start Test
plugs
type
dard household
flashing
followed
instruction to
Switch’
power
115 volts A.C.
maximum
at a
draw
Simulator’.
'Detach
Disconnect
70 watts
for the
control.
mixer/heater
(sic)
depresss
from the
height
‘simulator’s’ dimensions
inches;
are:
—8½
switch_”
‘Start Test’
inches;
weight—
total
diameter —4½
Intoxilyzer test record card lists the
electronics, plus jar and solution —about 3½
temperature as
"34.1°0."
volume,
pounds;
ml.
solution
start —500
simulator,
equipment
help-
such as the
used to extract
purpose
blood for
of chemi-
history
ful to
of North Dako-
consider the
cal test was not a
implied
originally
ta’s
law. When
consent
statute to be
accuracy
tested for
before
39-20-07(5), N.D.C.C.,
enacted in
results of chemical test could be
received
provided
given
results of a test
that “[t]he
evidence].
*3
Harger
the
Drunkometer or
means of
We are aware of one
Harrell v.
approved by
other similar device
the Ameri- State,
(Tex.Ct.App.1985),
It is evident that the requirement. scheme contains no such statute, use of the term that whenever an expand
did not intend to
the certification
conjunction
device is used in
with
approval requirements
of the State
device,
a breath
test results should
auxiliary equipment
to include
proof
be inadmissible absent
that those de
conjunction
in
be used
individually approved
vices have been
specific
device,
merely recog-
certified
He re
approving
nized the
need for a method
part
in
222
Ghylin,
lies
on State v.
testing equipment
new
as it became avail-
864,
(N.D.1974), in
which this court
able for use. We conclude that the term
that, in
statutory
held
order to meet the
“devices” as used in the statute refers to
requirement
that a test be
adminis
testing equipment
used to
tered,”
foundation for the
introduction
subject sample,
of the
in
evidence of the results of a
auxiliary equipment
and not to
or devices
“requires proof
very
at the
least that
testing procedure.
used
See
performing
in
ampules
the test
326,
Novotasky,
State v.
5 Conn.Cir.
they purport
are what
to be and have been
(1968)
A.2d 189
“device” that must be
[the
approved, by spot-checking
analysis by
accuracy pursuant
checked for
to statute
competent
or other
before chemical
of breath or blood
authority”
solution’ is
and “that the ‘known
may
apparat-
admitted
evidence is
be,
purports
namely,
per
a 0.10
what
analyzing
us used
collected
water;
...”
collecting
rather than
cent solution of alcohol and
the device used
Salhus,
Tarcha,
sample];
also
220 N.W.2d
State v.
Conn.Cir. See
(1964)
syringe
[pertaining
inaccurately unfairly administered]. Thus, require him is no to do so. there suspen Schense also claims his procedure analagous breach here. If should sion be reversed because there was requiring there should be a rule simulators Toxicologist, discrepancy serial numbers iden asserting tifying party proposition is the who the simulator used the test provide supporting evidence. test record shows serial number of the sim card J., WALLE, During used to be 0471719. concurs.
ulator VANDE