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State of North Dakota v. Joshua David Stroh

July 13, 2011

STATE OF NORTH DAKOTA,
PLAINTIFF AND APPELLEE
v.
JOSHUA DAVID STROH, DEFENDANT AND APPELLANT



Appeal from the District Court of Cass County, East Central Judicial District, the Honorable Steven L. Marquart, Judge.

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

N.D. Supreme Court

State v. Stroh,

2011 ND 139

This opinion is subject to petition for rehearing.

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AFFIRMED.

Opinion of the Court by Kapsner, Justice.

[¶1] Joshua Stroh appeals from a criminal judgment entered after a jury found him guilty of driving under the influence of intoxicating liquor. Because the district court did not abuse its discretion by deciding that the Intoxilyzer test had been fairly administered and by admitting the test result into evidence, we affirm.

I

[¶2] On September 9, 2009, at 10:37 p.m., a state highway patrol officer observed a vehicle speeding and initiated a stop. Stroh was identified as the vehicle's driver, and, noticing an odor of alcohol on Stroh's breath, the officer administered field sobriety tests. Stroh failed the field tests and was arrested for driving under the influence. The officer drove Stroh to the jail, where the officer administered a chemical test on the Intoxilyzer 5000. The officer conducted the first test at 11:06 p.m., which returned a result of a 0.16 percent blood alcohol level. Stroh was subsequently charged with driving under the influence.

[ΒΆ3] In April 2010, a jury trial was held in the district court. During trial, the State offered into evidence the Intoxilyzer test record. Stroh's trial counsel objected, arguing the officer had failed to comply with the State Toxicologist's approved methods for administering the test. Specifically, Stroh argued that the officer had failed to ascertain the 20-minute waiting period before administering the test, during which time the test subject may not have anything to eat, drink, or smoke. Over Stroh's objection, the court received the test record into evidence. The district court also denied Stroh's ...


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