Jеrome Mike SCHIRADO, Petitioner and Appellant, v. The NORTH DAKOTA STATE HIGHWAY COMMISSIONER and Elden G. Spier, Director, Drivers License Division, State Highway Department, Respondent and Appellee.
Civ. No. 11071.
Supreme Court of North Dakota.
Feb. 20, 1986.
382 N.W.2d 391
E. Application of the better rule of law
While we believe that our rules for construing the effect of an exception to an exclusion of coverage in relation to other coverage exclusions in an insurance policy constitute the better rule of law, we recognize that ours is a “minority position.” See Emcasco Ins. Co. v. L & M Development, Inc., 372 N.W.2d 911 (N.D. 1985). Our belief that ours is the better rule of law, however, is insufficient under the circumstances presented in this case to override other relevant considerations militating in favor of the application of Minnesota law in the construction of the insurance policy at issue.
In light of the foregoing, North Dakota‘s contacts bearing upon the contractual relationship between Fire Sprinkler and MSI are “few and relatively insignificant as compared with those of” Minnesota, аnd this presents “an easy conflicts case.” R. Leflar, 41 N.Y.U.L.Rev. 267, 289-90 (1966). We conclude that Minnesota is the State with the most significant contacts with the insurance policy at issue. We therefore conclude that the trial court did not err in apрlying Minnesota law in the construction of the insurance policy. Because Apollo conceded at oral argument that it cannot win unless North Dakota law is applied, discussion of other issues is unnecessary.
The judgment and order are affirmed.
ERICKSTAD, C.J., and LEVINE, MESCHKE and GIERKE, JJ., concur.
Robert E. Lane, Asst. Atty. Gen., Bismarck, for respondent and appellee.
LEVINE, Justice.
This is an appeal by Jerome M. Schirado from a district court judgmеnt affirming the North Dakota State Highway Commissioner‘s suspension of his driving privileges pursuant to
Schirado was arrested for driving while under the influence of intoxicating liquor. He was given two tests on the Intoxilyzer device to determine his blood alcohol concentration. Due to faulty operation of the Intoxilyzer, the first test was not completed and consequently, the results were not recorded. The second test recorded Schirado‘s blood alсohol concentration at 0.17 percent. Following an administrative hearing the Commissioner suspended Schirado‘s driving privileges for one year. The suspension was affirmed by the district court and Schirado appealed.
In suspending Schirado‘s driving privileges the Commissioner‘s hearing officer concluded that the Intoxilyzer test had been fairly administered to Schirado.
Fair administration of a test may be established in either of two ways: through the State Toxicologist‘s testimony or by a showing that the test was performed according to the State Toxicologist‘s Approved Method of administеring the test.
The State Toxicologist did not testify at Schirado‘s hearing. Consequently, fair administration of the Intoxilyzer test could only be established by a showing that the test was performed according to the Approved Method.
The relevant portion of the Approved Method provides:
“If the рrinted Intoxilyzer test record is illegible press the ‘Start Test’ switch. When the display reads ‘Insert Test Record’ place a new test record in the Intoxilyzer. The printer will reprint all the test information on the new test record and feеd it out of the instrument. Remove the second test record from the instrument and transfer the information requested on the lower half of Form 106-I from the first card to the second card and retain both for evidentiary purposes.”
Schirаdo contends that the test was not performed in accordance with the Approved Method and consequently, the hearing officer erred in concluding that Schirado had been fairly tested. We agree.
While administеring the first test to Schirado the Intoxilyzer operator realized the machine was not legibly printing the test results and cancelled the test. This procedure does not conform with the Approved Method. Had the operаtor followed the Approved Method and completed the test (despite the printing malfunction) the Intoxilyzer could have reprinted the test results on a new test record card and preserved this information for evidеntiary purposes.
Failure to abide by the Approved Method renders the accuracy and reliability of the test results doubtful without explanatory testimony by the State Toxicologist. Moser, supra.
There is no dispute that the Approved Method was not followed. Without explanatory testimony by the State Toxicologist, see, e.g., State v. Puhr, 316 N.W.2d 75 (N.D. 1982), the only way for the hearing officer to cоnclude that the second test was accurate was to assume so. This cannot be done. The hearing officer‘s conclusion that a test was fairly administered must be supported by adequate factual findings, not assumptions.
Accordingly, the district court judgment affirming the Commissioner‘s hearing officer‘s deсision to suspend Schirado‘s driver‘s license is reversed.
GIERKE and VANDE WALLE, JJ., concur.
VANDE WALLE, Justice, concurring specially.
The Legislature has stated that the result of chemical analysis of the blood, breath, saliva, or urine of a person arrested for driving or being in actual physical control of a motor vehicle while under the influence of alcohol or drugs is to be received in evidence “when it is shown that the sample was properly obtained and the test was fairly administered, and if the test is shown to have been performed according to methods and with devices approved by the state toxicologist, ...”
The dissenting opinion concludes that the failure to follow the procedure goes to the weight, not the admissibility, of the evidence. But that is contrary to what the statute says. Unless we are prepared to say that a determination of admissibility of evidence in these matters is solely the prerogative of the judicial branch of government and controlled by the rules of evidence adopted by this court, I must agree with the majority opinion because the officer did not follow the method prescribed by the State Toxicologist and, by virtue of
The dissenting opinion аpparently attempts to explain away the statutory requirement on the basis that it is the second, not the first, test which the Highway Commissioner relied upon. However, that would always be true where the result of the first test was abortеd for whatever reason. Such a rationale would make the approved method quoted in the majority opinion essentially meaningless, i.e., regardless of whether or not the method was followed in the first test, if it is the secоnd test that is relied upon failure to follow the prescribed method goes only to the weight, not the admissibility, of the second test.
MESCHKE, Justice, dissenting.
As in Moser v. North Dakota State Highway Commissioner, 369 N.W.2d 650 (N.D. 1985), the message of the majority opinion is that any sloppiness in administering a blood alcohol test will be viewed as affecting its competency and reliability, rather than its weight as evidence. Again, as a general proposition, I can concur in that message. “Short-cut” evidence must carefully comply with the statutory conditions if it is to be admitted for the adverse administrative action of suspension of driving privileges.
The problem in this case is that the test used, the second test, was “shown to have been performed according to methоds and with devices approved by the state toxicologist,” as
It is true that “[a]lthough relevant, evidence may be excluded if its probative value is substantially outweighed by thе danger of unfair prejudice” under
The bungled circumstances of the first test may bear upon the weight to be given to the sеcond test. I would not fault a hearing officer who declined to suspend driving privileges because he found the circumstances of multiple tests sufficiently unreliable to decline to suspend driving privileges. Compare
Since I do not consider “the evidence insufficient to warrant the conclusion reached by the ... hearing officer,”
ERICKSTAD, C.J., concurs.
ERICKSTAD, Chief Justice, concurring in the dissenting opinion of Justice MESCHKE.
I concur in Justice Meschke‘s dissent, but I would have preferred, had I been able to obtain the agreement of a majority of our Court, to have remanded this case to the North Dakota State Highway Commissioner for a further evidentiary hearing at which time the State Toxicologist could have been examined concerning the effect of the abortive first test on the second test with appropriate opportunity for cross-examination as well. In my view, the public‘s interest in safe highways is as great as Mr. Schirado‘s interest in maintaining his driving privileges.
The provisions of
SOUTH DAKOTA WHEAT GROWERS ASSOCIATION, Plaintiff and Appellee, v. Ronald BRAKKE, Defendant and Appellant.
Civ. No. 11028.
Supreme Court of North Dakota.
Feb. 20, 1986.