Salter v. Hjelle, 870095

• Decision Date: 19 November 1987
• Docket Number: No. 870095,870095
• Citation: 415 N.W.2d 801
• Parties: John H. SALTER, Petitioner and Appellant, v. Walter HJELLE, N.D. Highway Commissioner, Respondent and Appellee. Civ.
• Court: North Dakota Supreme Court

Page 801

415 N.W.2d 801

John H. SALTER, Petitioner and Appellant, v. Walter HJELLE, N.D. Highway Commissioner, Respondent and Appellee.

Civ. No. 870095.

Supreme Court of North Dakota.

Nov. 19, 1987.

As Corrected Dec. 9, 1987.

Ralph A. Vinje, Bismarck, for petitioner and appellant.

Robert E. Lane, Asst. Atty. Gen., Bismarck, for respondent and appellee.

LEVINE, Justice.

John H. Salter (Salter) appeals from a judgment of the Burleigh County district court which affirms the administrative hearing officer's decision suspending Salter's driver's license. We reverse.

Salter was arrested for driving under the influence (DUI). He was given an Intoxilyzer test by a certified chemical test operator. The test showed a blood-alcohol concentration in excess of 0.10%.

Salter requested and received a hearing. At the hearing the following evidence was received: State Toxicologist's approved method, testing officer's certified written report, list of certified chemical operators, and list of approved chemical testing devices. No operational checklist was offered. Neither the officer who conducted Salter's test nor the State Toxicologist testified.

Salter objected to the admission of the Intoxilyzer test because there was no showing it was fairly administered. The hearing officer overruled the objection and suspended Salter's driving privileges for ninety-one days.

Salter appealed to the district court, which affirmed the administrative suspension. Salter then appealed to this court.

The sole issue is whether the hearing officer erred in receiving into evidence Salter's Intoxilyzer test results. Salter contends that the Intoxilyzer results were inadmissible because there was no showing that the test had been fairly administered. We agree.

Section 39-20-07, NDCC, addresses the admissibility of Intoxilyzer test results in administrative proceedings. Brandt v. N.D. State Highway Com'r, 409 N.W.2d 645 (N.D.1987). Subsection 5 provides in part:

"5. The results of 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 state toxicologist, and by an individual possessing a certificate of qualification to administer the test issued by the state toxicologist...."

Subsection 6 provides in part:

"6. ... Upon approval of the methods or devices, or both, required to perform the tests and the persons qualified to administer them, the state toxicologist shall prepare and file written record of the approval with the highway commissioner and the clerk of the district court in each county and shall include in the record;

* * *

c. The operational checklist ¹ and forms prescribing the methods currently approved by the state toxicologist in using the devices during the administration of the tests."

The purpose of Sec. 39-20-07(5) and (6) is to ease the requirements for admissibility of chemical test results while ensuring that the test upon which the results are based is fairly administered. The legislature has struck a balance between procedural efficiency and substantive reliability.

The State Toxicologist's approved method sets out the correct procedure for conducting the Intoxilyzer test. In that document the State Toxicologist concludes:

"When the test is conducted according to this method, it is considered as fairly administered and the result obtained is scientifically accepted as accurate."

Thus, the Toxicologist tells us that when the approved method is followed, the test is both fairly administered and scientifically accurate.

In Brandt v. N.D. State Highway Com'r, supra, we analyzed what was necessary to establish fair administration. Under Sec. 39-20-07, certified copies of the operational checklist and listings of approved chemical testing devices and certified operators are cumulatively sufficient to prove fair administration. Id. However, the statute does not make such evidence the exclusive means to establish fair administration and other evidence may be offered.

"Even if the requirements of 39-20-07(6) are not met, chemical test results can be used as evidence if the proponent supplies other proof that the test was fairly administered." Brandt at 647.

Other proof of fair administration may be provided by testimony of the State Toxicologist or a showing that the test was performed according to the approved method. Schirado v. North Dakota State Highway Com'r, 382 N.W.2d 391 (N.D.1986). Here, there is no checklist showing the test was performed according to the approved method and no testimony to that effect. The question thus becomes whether there is other evidence to establish fair administration.

Notwithstanding Brandt and Schirado, and NDCC Sec. 39-20-07, the commissioner argues that merely introducing the test records satisfies the commissioner's burden to prove the test was fairly administered. He contends that NDCC Sec. 39-20-05(4) makes admissible the Intoxilyzer test records without proof that the test was fairly administered.

Section 39-20-05(4) provides:

"4. At a hearing under this section, the regularly kept records of the commissioner may be introduced. Those records establish prima facie their contents without further foundation. For purposes of this chapter, any copy of a certified copy of an analytical report of a blood, urine, or saliva sample received by the commissioner from the office of the state toxicologist or a law enforcement officer, a certified copy of the checklist and test records received by the commissioner from a certified breath test operator, and any copy of a certified copy of a certificate of the office of the state toxicologist relating to approved methods, devices, operators, materials, and checklists used for testing for blood alcohol concentration received by the commissioner from the office of the state toxicologist or the clerk of district court, are regularly kept records of the commissioner. [Emphasis supplied.]

Section 39-20-05(4) allows admission of the regularly kept records of the commissioner. These records establish their contents without further foundation. Section 39-20-05(4) connects the checklist with the test records. It designates a certified copy of that pair of documents as a regularly kept record of the commissioner entitled to prima facie evidentiary effect. A test record without a checklist is not similarly treated.

In interpreting a statute, we examine not only every word of the statute, Brenna v. Hjelle, 161 N.W.2d 356 (N.D.1968), but also all subsections of a statute, with the view that the entire statute is intended to be effective. NDCC Sec. 1-02-38(2). In particular, we believe that Sec. 39-20-05(4) must be read together with Sec. 39-20-05(2).

Section 39-20-05(2) provides in pertinent part:

"2. ... For purposes of this section, a copy of a certified copy of an analytical report of a blood, urine, or saliva sample from the office of the state toxicologist, or a certified copy of the checklist and test records from a certified breath test operator establish prima facie the blood alcohol concentration shown therein...." [Emphasis supplied.]

Section 39-20-05(2) addresses directly the evidentiary effect to be afforded test records. It too links the test records with the checklist. In order for a test record to establish prima facie its resulting blood alcohol concentration, it must be accompanied by a certified copy of the checklist. Without a checklist the test records are not prima facie evidence of their results.

We believe the Legislature expressed its intent, through the clear language of these statutory provisions, that a checklist is both the necessary and sufficient means to render test results admissible without further foundation (assuming, of course, that the other documents described in Sec. 39-20-07(6) are offered). We conclude that, absent a checklist, the test results may not be introduced into evidence without some other showing of fair administration.

Our construction of Sec. 39-20-05(2) and (4) thus harmonizes it with the fair administration requirement of Sec. 39-20-07 and gives effect to both statutes. It is, of course, our duty to construe statutes, if possible, "to give effect to both ... without doing violence to either." Stradinger v. Hatzenbuhler, 137 N.W.2d 212, 216 (N.D.1965).

The commissioner argues that Geiger v. Hjelle, 396 N.W.2d 302 (N.D.1986), supports his argument that test results need no foundation as to fair administration. However, the issue in Geiger v. Hjelle was not whether the test results were properly admitted. Geiger conceded the test results were properly in evidence, but argued they could not be used to prove refusal to submit to the test. We held in Geiger that a test record may be used to show refusal to submit to testing. Geiger does not stand for the proposition that test records need no foundation as to fair administration.

The commissioner also argues that the disputable presumption of...