Schense v. Hjelle

• Decision Date: 23 April 1986
• Docket Number: No. 11063,11063
• Citation: 386 N.W.2d 888
• Parties: Edward L. SCHENSE, Plaintiff and Appellant, v. Walter HJELLE, State Highway Commissioner, Defendant and Appellee. Civ.
• Court: North Dakota Supreme Court

Page 888

386 N.W.2d 888

Edward L. SCHENSE, Plaintiff and Appellant, v. Walter HJELLE, State Highway Commissioner, Defendant and Appellee.

Civ. No. 11063.

Supreme Court of North Dakota.

April 23, 1986.

Thomas K. Schoppert, New Town, for plaintiff and appellant.

Myron E. Bothun, Asst. Atty. Gen., Bismarck, for defendant and appellee.

GIERKE, Justice.

Edward L. Schense appeals from a district court judgment upholding the North Dakota State Highway Commissioner's (Commissioner) decision to suspend Schense's driver's license. We affirm.

During April 1985, Schense was arrested for driving while under the influence of intoxicating liquor. An Intoxilyzer test administered by the arresting highway patrolman recorded Schense's blood alcohol concentration at 0.15 percent. Following an administrative hearing during which Schense and the highway patrolman testified, the Commissioner suspended Schense's driving privileges for one year.

Schense asserts on appeal that the suspension should be reversed because there was inadequate foundation for the admission into evidence of the Intoxilyzer test results. He does not claim that there was a failure to perform the test according to the State Toxicologist's Approved Method of administering the test, but asserts that no evidence was introduced that the individual "simulator" ¹ used during the Intoxilyzer test had been certified or approved by the State Toxicologist as a "device" to be used with the Intoxilyzer 5000, as allegedly required by Sec. 39-20-07(5) and (6), N.D.C.C. The Commissioner contends that the statute requires certification and approval of only specific testing devices, i.e., Breathalyzers and Intoxilyzers, and not the simulator, which is a piece of auxiliary equipment used during the process of calibrating the testing devices.

The version of Sec. 39-20-07(5) and (6), N.D.C.C., in effect at the time of the arrest and administrative hearing, provided in pertinent part:

"5. 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 state toxicologist, and by an individual possessing a certificate of qualification to administer the test issued by the state toxicologist. The state toxicologist is authorized to approve satisfactory techniques, devices, and methods of chemical analysis and determine the qualifications of individuals to conduct such analysis, and shall issue a certificate to all qualified operators....

"6. ... Upon approval of the methods or devices, or both, and techniques 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 clerk of the district court in each county and shall include in the record:

"a. A quarterly register of the specific testing devices currently approved, including serial number, location, and the date and results of last inspection."

In determining whether the term "devices" was intended to include auxiliary equipment such as the simulator, it is helpful to consider the history of North Dakota's implied consent law. When originally enacted in 1959, Sec. 39-20-07(5), N.D.C.C., provided that "[t]he results of a test given by means of the Harger Drunkometer or other similar device approved by the American Medical Association and the National Safety Council shall be received in evidence when it is shown that the test was fairly administered." See 1959 N.D.Sess.Laws Ch. 286, Sec. 7. Upon discovering that the American Medical Association did not, as a matter of policy, endorse or approve any specific product or device [ see State v. Miller, 146 N.W.2d 159, 164 (N.D.1966) ], the Legislature amended the statute by giving the State Toxicologist the authority "to approve satisfactory techniques, devices and methods of chemical analysis," and by providing that the results of such tests shall be received in evidence when it is shown that the test was "performed according to methods and/or with devices approved by the state toxicologist...." 1965 N.D.Sess.Laws Ch. 281, Sec. 1.

It is evident that the Legislature, by its use of the term "devices" in the statute, did not intend to expand the certification and approval requirements of the State Toxicologist to include auxiliary equipment that might be used in conjunction with a specific testing device, but merely recognized the need for a method of approving new testing equipment as it became available for use. We conclude that the term "devices" as used in the statute refers to the testing equipment used to perform the chemical analysis of the subject sample, and not to auxiliary equipment or devices used during the testing procedure. See State v. Novotasky, 5 Conn.Cir. 326, 251 A.2d 189 (1968) [the "device" that must be checked for accuracy pursuant to statute before chemical analysis of breath or blood may be admitted in evidence is the apparatus used in analyzing the sample collected rather than the device used in collecting the sample]; State v. Tarcha, 3 Conn.Cir. 43, 207 A.2d 72 (1964) [a doctor's syringe used to extract blood for purpose of chemical test was not a "device" required by statute to be tested for accuracy before results of chemical test could be received in evidence].

We are aware of one case, Harrell v. State, 693 S.W.2d 693 (Tex.Ct.App.1985), in which the defendant's conviction for driving while intoxicated was reversed for failure of the state to show final certification of the reference simulator used in conjunction with the Intoxilyzer in administering the breath test. Harrell is distinguishable, however, because the Texas Breath Testing Regulations promulgated by the Texas Department of Public Safety expressly required approval and certification of the reference simulator as a precondition to admissibility of test results. The Texas regulations required certification of individual "breath test instruments and allied equipment," including "the reference sample devices," and it was "undisputed that the reference simulator is 'Allied Equipment' as defined in the regulations." Harrell, supra, 693 S.W.2d at 695. Our statutory scheme contains no such requirement.

Schense asserts that whenever an auxiliary device is used in conjunction with a breath testing device, test results should be inadmissible absent proof that those devices have been individually approved and certified by the State Toxicologist. He relies in part on State v. Ghylin, 222 N.W.2d 864, 869 (N.D.1974), in which this court held that, in order to meet the statutory requirement that a test be "fairly administered," the foundation for the introduction in evidence of the results of a Breathalyzer test "requires proof at the very least that the ampules used in performing the test are what they purport to be and have been approved, by spot-checking or analysis by the State Toxicologist or other competent authority" and "that the 'known solution' is what it purports to be, namely, a 0.10 per cent solution of...