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Johnson v. North Dakota Dep't of Transportation3/23/2004
The North Dakota Department of Transportation appeals from a Southeast Judicial District Court judgment reversing an administrative hearing officer's decision to suspend Aaron Johnson's driving privileges for driving under the influence of alcohol. The Department argues the administrative hearing officer reasonably found the provision for a twenty-minute waiting period in the approved method for conducting the Intoxilyzer test was followed. The approved method requires the operator to ascertain the subject has had nothing to eat, drink, or smoke within the twenty minutes preceding the collection of the breath sample. We reverse the district court's decision, concluding the hearing officer reasonably found the provision for a twenty-minute waiting period in the approved method for conducting the Intoxilyzer test was followed.
I.
[ ] On May 7, 2003, Jamestown Police Officer Ronald Dietz stopped Johnson for a traffic violation. After Johnson failed field sobriety tests and the S-D2 test, he was arrested for driving under the influence of alcohol. After arresting Johnson, the officer transported him to the Stutsman County Corrections Center, where he administered an Intoxilyzer test. The test results showed Johnson had a blood alcohol level of .16 percent. The Department notified Johnson of its intent to suspend his driving privileges, and he requested a hearing.
[ ] At the June 2, 2003, administrative hearing, the officer testified that he was familiar with the approved method for administering the S-D2 test and that he followed the approved method. He testified that before administering the test, he advised Johnson of the North Dakota implied-consent law. He testified he checked Johnson's mouth and established a five-minute waiting period. The officer explained that after the S-D2 test, he arrested Johnson, handcuffed his hands behind his back, placed him in the back of the police car, and transported him to the corrections center. The officer testified that Johnson's arrest was at 1:32 a.m. and that it took about one or two minutes to get to the corrections center.
[ ] The officer testified that once they arrived at the corrections center, he notified Johnson of the implied-consent law, checked the inside of his mouth to make sure there was nothing in there, and observed him for twenty minutes before administering the Intoxilyzer test. He testified the first breath sample was taken at 1:51 a.m. The officer testified he followed the approved method in administering the Intoxilyzer test. He explained he ascertained the twenty-minute waiting period by noting the time at which he read Johnson the implied-consent law. He stated he administered the test twenty minutes from that time. The Intoxilyzer test record and checklist also indicate that the twenty-minute waiting period was ascertained before the officer administered the test.
[ ] At the hearing, Johnson objected to the admission of the Intoxilyzer test results, contending the officer did not comply with the twenty-minute waiting period provided for in the method approved by the State Toxicologist for conducting an Intoxilyzer test. The hearing officer found the twenty-minute waiting period had been observed by the time the officer administered the Intoxilyzer test. He suspended Johnson's driving privileges for ninety-one days.
[ ] Johnson appealed the hearing officer's decision to the district court. The district court reversed the hearing officer's decision, concluding there was not a twenty-minute wait prior to the administration of the Intoxilyzer test. In its memorandum opinion, the district court explained the waiting period for the Intoxilyzer test does not begin until after the S-D2 test has been admini
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