Hoistad v. NDDOT 2025 ND 45
Docket No.: 20240297
Filing Date: 2/27/2025
Case Type: Appeal - Administrative - Department of Transportation
Author: Bahr, Douglas Alan

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Highlight: The Department bears the burden of proving a chemical breath test result was fairly administered. If the Department fails to establish compliance with the approved method which goes to the scientific accuracy and reliability of the test, the Department must prove fair administration of the test through expert testimony.

When it is ready for the second breath sample, the Intoxilyzer 8000 displays, "Please Blow Until Tone Stops." The word "until" in this context signifies the point at which the driver should cease blowing into the instrument. Repeatedly blowing into the Intoxilyzer after the tone stopped is contrary to the instructions displayed by the Intoxilyzer 8000 and, thus, the approved method.

Unless the impact of a deviation is within the knowledge of an ordinary person, it is the Department's burden to show through expert testimony whether a deviation from the approved method impacted the accuracy and reliability of the test. An ordinary person does not know what impact, if any, a subject's repeated blowing into the Intoxilyzer after the tone stops has on the test results.

When the officer's deviations from the approved method involve the procedures for collecting and testing the sample, it raises the possibility that the deviation impacted the test result.

Even though the Department's action is not upheld by a court, a party is not entitled to attorney's fees and costs under N.D.C.C. § 28-32-50(1) when the Department acted with substantial justification in its decision.