DUI Appeal - North Dakota Ignores Mandatory Observation Period

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In State of North Dakota v. Stroh, --- N.W.2d ----, 2011 WL 2698613 (N.D.), 2011 ND 139, the defendant was convicted of DUI after the trial court admitted the results of an Intoxilyzer test into evidence. On appeal, Stroh argued that the officer had failed to ascertain the 20–minute waiting period before administering the test, during which time the test subject may not have anything to eat, drink, or smoke.



North Dakota's breath testing law includes:

The results of the chemical analysis must 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 director of the state crime laboratory or the director's designee, and by an individual possessing a certificate of qualification to administer the test issued by the director of the state crime laboratory or the director's designee.(Emphasis added.)

* * *

Fair administration of an Intoxilyzer test may be established by proof the State Toxicologist's approved method for conducting the test has been “scrupulously followed.” Steinmeyer, at ¶ 10. “However, ‘scrupulous' compliance does not mean ‘hypertechnical’ compliance.” Id. (internal quotation omitted).

The officer admitted that he left the defendant alone twice during the 20 minute observation period. Stroh asserted the State did not establish “scrupulous compliance” with the Toxicologist's approved method for conducting the test because the evidence showed Stroh was handcuffed in front of his body and that Stroh was in possession of a can of chewing tobacco.



The State asserted, however, that the district court as fact-finder could reasonably infer that Stroh did not have anything to eat, drink, or smoke during the 20–minute waiting period. The State contends the court did not abuse its discretion because its decision was the product of a rational mental process and the court found that the 20–minute waiting period was complied with. The State contended that although there was testimony Stroh possessed a can of chewing tobacco when he was patted down, there was no evidence he consumed the tobacco, even though Stroh testified at trial.



The officer unequivocally testified on direct that he had ascertained the 20–minute waiting period before giving the first breath sample; that Stroh did not have anything in his mouth; that he did not observe Stroh eat, drink, or smoke anything; and further that Stroh did not belch, burp, or vomit, and gave a good sample. During trial, however, the video recording of the encounter with Stroh from the officer's squad car was also admitted into evidence. Although the officer testified he ascertained the 20–minute waiting period by observing Stroh, Stroh's counsel on cross-examination established the officer had actually left Stroh unattended in his car at least twice.



Concluding that despite this evidence the result was properly admitted, the court stated:

"Under these facts and circumstances, we conclude the district court did not abuse its discretion in deciding the State established the officer scrupulously complied with the 20–minute waiting period. Although Stroh testified at trial, Stroh did not testify that he had in fact put any chewing tobacco in his mouth before the test, or during the periods he was left unattended in the squad car. The officer, however, testified that he ascertained the 20–minute waiting period and that prior to the test, Stroh did not have anything in his mouth. This left the inference to be drawn by the district court, which in essence concluded that Stroh had failed to rebut the evidence that the officer ascertained the 20–minute waiting period.

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