Schirado v. North Dakota State Highway Commissioner

LEVINE, Justice.

This is an appeal by Jerome M. Schirado from a district court judgment affirming the North Dakota State Highway Commissioner’s suspension of his driving privileges pursuant to North Dakota Century Code ch. 39-20. We reverse.

Schirado was arrested for driving while under the influence of intoxicating liquor. He was given two tests on the Intoxilyzer device to determine his blood alcohol concentration. Due to faulty operation of the Intoxilyzer, the first test was not completed and consequently, the results were not recorded. The second test recorded Schira-do’s blood alcohol concentration at 0.17 percent. Following an administrative hearing the Commissioner suspended Schirado’s driving privileges for one year. The suspension was affirmed by the district court and Schirado appealed.

In suspending Schirado’s driving privileges the Commissioner’s hearing officer concluded that the Intoxilyzer test had been fairly administered to Schirado. NDCC § 39-20-05. The issue here is whether or not there was sufficient evidence to warrant this conclusion. NDCC § 39-20-06.

Fair administration of a test may be established in either of two ways: through the State Toxicologist’s testimony or by a showing that the test was performed according to the State Toxicologist’s Approved Method of administering the test. NDCC § 39-20-07; Moser v. North Dakota State Highway Com’r, 369 N.W.2d 650 (N.D.1985).

The State Toxicologist did not testify at Schirado’s hearing. Consequently, fair administration of the Intoxilyzer test could only be established by a showing that the test was performed according to the Approved Method.

The relevant portion of the Approved Method provides:

“If the printed Intoxilyzer test record is illegible press the ‘Start Test’ switch. When the display reads ‘Insert Test Record’ place a new test record in the Intoxilyzer. The printer will reprint all the test information on the new test record and feed it out of the instrument. Remove the second test record from the instrument and transfer the information requested on the lower half of Form 106-1 from the first card to the second card and retain both for evidentiary purposes.”

Schirado contends that the test was not performed in accordance with the Approved Method and consequently, the hearing officer erred in concluding that Schira-do had been fairly tested. We agree.

While administering the first test to Schi-rado the Intoxilyzer operator realized the machine was not legibly printing the test results and cancelled the test. This procedure does not conform with the Approved Method. Had the operator followed the Approved Method and completed the test (despite the printing malfunction) the In-toxilyzer could have reprinted the test results on a new test record card and preserved this information for evidentiary purposes.

Failure to abide by the Approved Method renders the accuracy and reliability of the test results doubtful without explanatory testimony by the State Toxicologist. Mos-*393er, supra. In this instance we simply do not know the reason for, or the significance of, the malfunction in the first test. The malfunction may have been attributable to either a defect in the Intoxilyzer or the officer’s inability to properly operate the device, either defect rendering the second test suspect.

There is no dispute that the Approved Method was not followed. Without explanatory testimony by the State Toxicologist, see, e.g., State v. Puhr, 316 N.W.2d 75 (N.D.1982), the only way for the hearing officer to conclude that the second test was accurate was to assume so. This cannot be done. The hearing officer’s conclusion that a test was fairly administered must be supported by adequate factual findings, not assumptions. NDCC § 39-20-06. Therefore, we hold that there was insufficient evidence to warrant the hearing officer’s conclusion that Schirado’s Intoxilyzer test was fairly administered.

Accordingly, the district court judgment affirming the Commissioner’s hearing officer’s decision to suspend Schirado’s driver’s license is reversed.

GIERKE and VANDE WALLE, JJ., concur.