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Schlosser v. North Dakota Department of Transportation

November 19, 2009

BROCK JOEL SCHLOSSER, PETITIONER AND APPELLEE
v.
NORTH DAKOTA DEPARTMENT OF TRANSPORTATION, RESPONDENT AND APPELLANT



Appeal from the District Court of Burleigh County, South Central Judicial District, the Honorable Gail Hagerty, Judge.

The opinion of the court was delivered by: VandeWalle, Chief Justice.

AFFIRMED.

Opinion of the Court by VandeWalle, Chief Justice.

[¶1] The North Dakota Department of Transportation appealed from the district court's judgment reversing the Department's suspension of Brock Joel Schlosser's driver's license. On appeal, the Department argues that the officer's testimony was sufficient to overcome its failure to introduce Form 104 into evidence. Form 104 lists the steps that the officer and nurse must follow when collecting a blood sample and submitting it to the North Dakota Crime Laboratory. We affirm the district court's judgment because the officer's conclusory testimony was insufficient to establish that the blood test sample had been properly obtained, and was therefore insufficient to establish the test was fairly administered according to the State Toxicologist's approved methods.

I.

[¶2] In September 2008, a North Dakota Highway Patrol officer pulled Schlosser over for erratic driving behavior and displaying expired license tabs. While speaking with Schlosser, the officer observed an odor of an alcoholic beverage coming from Schlosser and that he had bloodshot eyes. The officer administered field sobriety tests, including a preliminary breath test that resulted in a blood alcohol concentration greater than .08 percent. The officer arrested Schlosser for driving under the influence of alcohol and gave him the implied consent advisory. Schlosser expressly consented to chemical testing and the officer took him to the police department for a blood draw.

[¶3] At the police department, the officer and a registered nurse performed a blood draw. During the administrative hearing, the officer testified regarding Form 104:

MS. VARVEL: Did you and the nurse complete the Form 104?

SGT. SKOGEN: Yes, we did.

MS. VARVEL: I am referring you now to the Form 104 directions for blood sample collection and submission. . . . [D]id you ascertain that each of the listed steps was correctly completed?

SGT. SKOGEN: Yes, I did.

The officer did not testify in more detail about how the steps listed on Form 104 were completed. The hearing officer admitted the completed Form 104 into evidence, without the bottom portion of the form that was to be completed and retained by the officer. Schlosser objected, arguing that the test itself did not demonstrate that all the steps were performed, and that the officer's testimony was insufficient to show that the test was fairly administered. The hearing officer overruled Schlosser's objection. A blank Form 104, including the bottom portion, was admitted into evidence, as well. Schlosser moved to dismiss the administrative proceedings, arguing that the documents and the officer's testimony were insufficient to show that the blood test was fairly administered. The hearing officer denied Schlosser's motion.

[¶4] The hearing officer found that a registered nurse drew Schlosser's blood within two hours of his driving and the blood was tested "in accordance with the state toxicologist's approved method." The blood test indicated that Schlosser's blood alcohol concentration was greater than .08 percent. The hearing officer concluded that the officer had reasonable grounds to believe that Schlosser was driving under the influence of alcohol, that he was "properly tested," and that his blood alcohol concentration was greater than .08 percent within two hours of the time he was driving. Based on these findings of fact and conclusions of law, the hearing officer suspended Schlosser's driver's license for 365 days.

[ΒΆ5] Schlosser appealed the hearing officer's decision to the district court. Schlosser argued that the Department had failed to show the blood test was properly administered because the completed bottom portion of Form 104 was not admitted into evidence at the hearing. The district court reversed the hearing officer's decision, stating, "The trooper's conclusory statement is not sufficient to provide evidence that the test was properly ...


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