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Bollin v. North Dakota Dep't of Transportation5/17/2005
used two disinfectants on one blood draw without having the use of a second disinfectant be noticed by Deputy Hagel.
[ ] A reasoning mind examining the form would not have made the same inferences as the hearing officer. The form is unclear as to which disinfectant was used, and the state toxicologist testified she could not say the test results were accurate without that information. Deputy Hagel's testimony does not resolve the ambiguity present on the face of the form. The hearing officer's conclusions were not reasonable based on the evidence. We affirm the district court's reversal of Bollin's suspension.
III.
[ ] The Department argues Bollin failed to preserve his objection to the admission of the test results by not specifying his objection when the hearing officer asked him to. This Court has said, "if the hearing officer had sought more specific objections before ruling on them, [the defendant] would have had to specify or risk waiving his objections." Tabert v. N.D. Dep't of Transp., 1997 ND 39, 7, 560 N.W.2d 883; see also N.D.R.Ev. 103(a)(1) (requiring a statement of the specific ground of objection unless such ground is not apparent from the context).
[ ] The hearing officer asked Bollin if he could be more specific on his objections before she ruled on them. Bollin responded, "I don't have anything more specific at this time. Maybe after cross-examination, I will. If I do, I'll specify at that point in time." The hearing officer stated, " ery well. The objection, since it is not specific, is now overruled." Bollin solicited testimony from the state toxicologist and Deputy Hagel regarding Form 104, then stated during closing arguments why he felt the test had not been properly administered.
[ ] When Bollin said he was unable to specify the grounds for his objection, but would do so later if possible, the hearing officer stated the objection was overruled "now," implying she would be willing to reconsider at a later point in the hearing. While the formal objection was never specifically renewed, Bollin's closing argument stated his reasons for wanting the test results kept out of evidence. In any event, the record indicates both Bollin and the hearing officer were willing to reconsider the objection once Bollin had an opportunity to examine the witnesses and all the testimony had been heard, and, significantly, the hearing officer did subsequently resolve the substance of the objection, the ambiguity in the form, in the findings.
IV.
[ ] Bollin claims the Department should not be able to argue he failed to preserve his objection because the argument was not raised at the district court. Because we find Bollin preserved his objection at the administrative hearing for reasons set forth above, we find it unnecessary to address this issue.
V.
[ ] We affirm.
[ ] Gerald W. VandeWalle, C.J.
Dale V. Sandstrom
Mary Muehlen Maring
[ ] The Honorable Carol Ronning Kapsner disqualified herself subsequent to oral argument and did not participate in this decision.
[ ] The Honorable William A. Neumann, a member of the Court when this case was heard, resigned effective March 14, 2005, and did not participate in this decision.
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