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May v. Sprynczynatyk4/11/2005
120-I to establish compliance with the State Toxicologist's approved method for conducting the Intoxilyzer test. May objected to the Form 120-I at the hearing, arguing it constituted inadmissible hearsay.
[ ] The Department introduced into evidence a Standard Solution Analytical Report, signed by the State Toxicologist, certifying the solution met the required concentration for a valid test. The Standard Solution Analytical Report further states: "Each bottle of solution may be used on up to 50 Intoxilyzer 5000 tests or forty-five (45) days, whichever comes first." The Department also introduced a copy of the Form 120-I for this particular vial of standard solution through the officer who conducted the Intoxilyzer test. Form 120-I is a ledger documenting each Intoxilyzer test which uses a particular numbered vial of standard solution, and includes the date it was put into use. This Form 120-I purportedly showed the standard solution used in May's Intoxilyzer test was less than 45 days old and had been used in fewer than 50 prior tests.
[ ] At the time this case was briefed and argued, this Court had not addressed whether the 45-day, 50-test limitations were part of the State Toxicologist's approved method, so that compliance was a prerequisite to establishing fair administration of the test under N.D.C.C. § 39-20- 07(5). We resolved this issue in City of Bismarck v. Bosch, 2005 ND 12, 9, 11, 691 N.W.2d 260, holding that the guidelines included in the Standard Solution Analytical Report are not part of the approved method, and proof of compliance with those guidelines is not a prerequisite to showing fair administration of the test or to admission of the test results. See also Doll v. North Dakota Dep't of Transp., 2005 ND 62, 11. Accordingly, admission of Form 120-I was not necessary to show compliance with the State Toxicologist's approved method and was not a prerequisite for admissibility of the Intoxilyzer test results.
C.
[ ] We conclude the hearing officer did not abuse his discretion in admitting into evidence the Intoxilyzer test results.
V.
[ ] We have considered the remaining issues and arguments raised by the parties and find they are either without merit or are unnecessary to our decision. The judgment affirming the hearing officer's decision to suspend May's license is affirmed.
[ ] Mary Muehlen Maring
Dale V. Sandstrom
James M. Bekken, D.J.
Gerald W. VandeWalle, C.J.
[ ] The Honorable James M. Bekken, D.J., sitting in place of Kapsner, J., disqualified.
[ ] 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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