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Golberg v. Director, North Dakota Department of Transportation

Supreme Court of North Dakota

June 1, 2015

Jacob Matthew Golberg, Appellant
v.
Director, North Dakota Department of Transportation, Appellee

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

AFFIRMED.

Michael R. Hoffman, Bismarck, ND, for appellant; submitted on brief.

Douglas B. Anderson, Assistant Attorney General, Bismarck, ND, for appellee; submitted on brief.

Lisa Fair McEvers, Daniel J. Crothers, Carol Ronning Kapsner, Gary H. Lee, D.J., Gerald W. VandeWalle, C.J. Opinion of the Court by McEvers, Justice. The Honorable Gary H. Lee, D.J., sitting in place of Sandstrom, J., disqualified.

OPINION

Lisa Fair McEver, Justice.

[¶1] Jacob Golberg appeals a district court judgment affirming a North Dakota Department of Transportation hearing officer's decision suspending his driving privileges for 91 days. Golberg argues the hearing officer erred in admitting the analytical report containing the blood test results because 1) the Department failed to show an approved method was used to conduct the blood-alcohol analysis, 2) the report used the word " ethanol," which is not used in N.D.C.C. ch. 39-20, and 3) the report failed to show who performed the analysis of his blood sample; therefore, no evidence establishes the sample was analyzed by a person approved to do the analysis.

[¶2] This case is controlled by Filkowski v. Dir., N.D. Dep't of Transp, 2015 ND 104, 862 N.W.2d 785. In Filkowski, we held the affidavit completed by the individual who performed the blood analysis established the approved method was used, where the report listed the method as " Approved Method to Conduct Blood Alcohol Analysis (Rev. 0.1)," and the foundational document for the report was entitled " Approved Method to Conduct Blood Alcohol Analysis (TxS-020) Revision Number 0.1." Id. at ¶ ¶ 19-21. Additionally, we held the hearing officer did not err in admitting an analytical report that used the word " ethanol" instead of alcohol because, under the plain, ordinary, and commonly understood meaning, the word " alcohol" includes ethanol. Id. at ¶ ¶ 22-24. We also concluded prima facie evidence established a qualified individual conducted the blood-alcohol analysis, because the individual who signed the analytical report also completed an affidavit certifying she completed the analysis and she is included on the admitted list of individuals certified to conduct blood analysis. Id. at ¶ ¶ 25-27.

[¶3] The district court judgment affirming a North Dakota Department of Transportation hearing officer's decision suspending his driving privileges for 91 days is affirmed.

[¶4] Lisa Fair McEvers, Daniel J. Crothers, Carol Ronning Kapsner, Gary H. Lee, D.J., Gerald W. VandeWalle, C.J.

Page 286

[¶5] The Honorable Gary H. Lee, D.J., sitting in place of Sandstrom, J., disqualified.


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