Nichols v. Backes

• Decision Date: 02 October 1990
• Docket Number: No. 900168,900168
• Citation: 461 N.W.2d 113
• Parties: Randal NICHOLS, Petitioner and Appellant, v. Richard J. BACKES, Director, North Dakota Department of Transportation, Respondent and Appellee. Civ.
• Court: North Dakota Supreme Court

Page 113

461 N.W.2d 113

Randal NICHOLS, Petitioner and Appellant, v. Richard J. BACKES, Director, North Dakota Department of Transportation, Respondent and Appellee.

Civ. No. 900168.

Supreme Court of North Dakota.

Oct. 2, 1990.

Schoppert Law Firm, Minot, for petitioner and appellant, argued by Thomas K. Schoppert, Minot.

Gregory B. Gullickson (argued), Asst. Atty. Gen., Attorney General's Office, Bismarck, for respondent and appellee. Appearance by Elaine Ayers, Bismarck.

LEVINE, Justice.

Randal Nichols appeals from a district court judgment affirming an administrative suspension of his driver's license. We affirm.

Officer Kirchoffner stopped Nichols because the left taillight on Nichols' vehicle was not working. Kirchoffner detected the odor of alcohol on Nichols' breath and observed that Nichols' eyes were "a slight bloodshot red." Nichols stated that he had been drinking. Kirchoffner administered an Alco-Sensor test, which Nichols failed. Kirchoffner then arrested Nichols for DUI in violation of Sec. 39-08-01, N.D.C.C., and administered an Intoxilyzer breath test, which indicated that Nichols' blood alcohol content was .13%.

After an administrative hearing requested by Nichols, the hearing officer concluded among other things, ¹ that Kirchoffner had reasonable grounds to believe that Nichols had been operating a motor vehicle while under the influence of intoxicating liquor, in violation of Sec. 39-08-01, N.D.C.C., and suspended Nichols' driver's license for 91 days. Nichols appealed to the district court, which affirmed the administrative decision. Nichols appealed to this court, contending that the hearing officer improperly considered the results of the Alco-Sensor screening test and that, without the results of the Alco-Sensor test, "[t]here was an insufficient basis to determine that Nichols had been driving under the influence."

An Alco-Sensor is a device for providing "an onsite screening test ... of the person's breath for the purpose of estimating the alcohol content of the person's blood." Section 39-20-14, N.D.C.C. The sole purpose of an onsite screening test is to assist a law enforcement officer in deciding whether there are reasonable grounds to arrest an individual for driving under the influence of intoxicating liquor. State v. Schimmel, 409 N.W.2d 335 (N.D.1987); Asbridge v. North Dakota State Highway Comm'r, 291 N.W.2d 739 (N.D.1980).

Under Sec. 39-20-14, N.D.C.C., a screening test "must be performed by an enforcement officer certified as a chemical test operator by the state toxicologist and according to methods and with devices approved by the state toxicologist." The state toxicologist's "Approved Method For Operating Alco-Sensor" lists eight steps to be taken in administering an Alco-Sensor test and contains the following sentence at the bottom of the page: "A test administered according to the operating procedure on the back side of the ALCO-SENSOR device shall be deemed to be in accordance with the approved method." Officer Kirchoffner's testimony established that he followed the approved method prescribed by the state toxicologist. Nichols nonetheless contends that the results of the Alco-Sensor should not have been considered because the operating procedure on the back of the Alco-Sensor device was not introduced at the hearing.

It is clear to us that, if different from the approved method prescribed by the state toxicologist, "[a] test administered according to the operating procedure on the back side of the ALCO-SENSOR device" is merely an additional approved method that...