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Timothy Allen Mees v. North Dakota Department of Transportation

February 28, 2013

TIMOTHY ALLEN MEES,
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: Maring, Justice.

N.D. Supreme CourtMees v. N.D. Dep't of Transportation, 2013 ND 36

This opinion is subject to petition for rehearing. [Go to Documents]

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REVERSED.

Opinion of the Court by Maring, Justice.

[¶1] The North Dakota Department of Transportation appeals from the district court's judgment reversing the administrative hearing officer's decision to suspend Timothy Mees's driving privileges for ninety-one days for driving under the influence of alcohol. We conclude a reasoning mind reasonably could have concluded the hearing officer's finding that the officer who administered the Intoxilyzer ascertained that Mees did not have anything to eat, drink, or smoke for twenty minutes prior to the Intoxilyzer test is supported by the weight of the evidence on the entire record. Therefore, we reverse the district court's judgment and reinstate the hearing officer's decision to suspend Mees's driving privileges.

I

[¶2] On January 29, 2012, Officer Mark Otterness arrested Mees for driving under the influence and transported Mees to the Bismarck Police Department. On the Intoxilyzer Test Record and Checklist, Officer Mitchell Wardzinski certified he followed the approved method of collection and the twenty-minute wait period was ascertained. The Intoxilyzer test revealed Mees's alcohol concentration was .125 percent. Officer Otterness issued a report and notice to Mees following the completion of the Intoxilyzer test.

[¶3] Mees requested and received an administrative hearing. Officer Otterness testified at the administrative hearing, but Officer Wardzinski did not testify. Officer Otterness testified that Mees provided an on-site breath sample. Officer Otterness testified that prior to his administration of an on-site breath test, another officer at the scene had Mees clear his mouth of chewing tobacco, and Officer Otterness waited an additional three minutes before administering the on-site breath test.

[¶4] Officer Otterness also testified that after the result of the on-site screening test came back with an alcohol concentration of .125 percent, he arrested Mees for driving under the influence of an alcoholic beverage, placed him in handcuffs, and placed him in the backseat of his patrol car. Officer Otterness arrested Mees at 1:03 a.m. He then transported Mees to the police department arriving at 1:08 a.m. or 1:10 a.m. He testified that he took Mees directly to the booking room and, while filling out paperwork, Mees sat directly in front of him. He also testified that, while in the booking room, Mees did not place anything in his mouth. Officer Otterness then testified that he turned Mees over to Officer Wardzinski who administered the Intoxilyzer test. Officer Otterness testified that Officer Wardzinski commenced administering the Intoxilyzer test at 1:25 a.m. The result of the Intoxilyzer test was .125 percent alcohol concentration.

[¶5] At the hearing, the Intoxilyzer Test Record and Checklist was offered and received into evidence over Mees's objection. Mees objected to the admission of the Intoxilyzer Test Record and Checklist, arguing that Officer Wardzinski could not have ascertained whether Mees had anything to eat, drink, or smoke for twenty minutes prior to the administration of the test based on the time Mees arrived at the police department.

[¶6] At the conclusion of the hearing, the hearing officer issued her findings of fact, conclusions of law, and decision to suspend Mees's driving privileges for ninety-one days. In reaching this decision, the hearing officer found the "Intoxilyzer test[ ] was done in accordance with the [S]tate [T]oxicologist's approved method."

[ΒΆ7] Mees appealed to the district court. The district court reversed the hearing officer's decision, concluding Officer Wardzinski could not have ascertained whether Mees had anything to eat, drink, or smoke for twenty minutes prior to the administration of the Intoxilyzer test. Therefore, the approved ...


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