Appeal from the District Court of Cass County, East Central Judicial District, the Honorable Norman G. Anderson, Judge.
Tatum O. Lindbo, Fargo, N.D., for appellant.
Douglas B. Anderson, Office of Attorney General, Bismarck, N.D., for appellee.
Carol Ronning Kapsner,
Lisa Fair McEvers, Daniel J. Crothers, Dale V. Sandstrom, Gerald W. VandeWalle,
Carol Ronning Kapsner,
[¶1] Rebecca Joe Havemeier appeals from a judgment affirming an order of the Department of Transportation revoking her driving privileges for two years for refusing to submit to a chemical test. Because we conclude the approved method for administering an Intoxilyzer test was not followed, we reverse the judgment and remand for reinstatement of Havemeier's driving privileges.
[¶2] Shortly before 7 a.m. on June 14, 2014, a deputy sheriff pulled over Havemeier's vehicle after observing her driving erratically in Dunn County. After failing field sobriety tests and registering a .286 alcohol concentration on an onsite screening test, Havemeier was placed under arrest for driving under the influence. During an hour-long transport to jail in Dickinson, Havemeier consented to take a chemical test with an Intoxilyzer.
[¶3] The hearing officer's findings of fact describe whet transpired:
Deputy Randall attempted to administer the Intoxilyzer 8000. Ms. Havemeier did not blow into the machine long enough for any result to register. Deputy Randall informed Ms. Havemeier that he was going to marking [sic] the test as a refusal by action and Ms. Havemeier asked if she could have an additional chance. As there was still time within the initial three minutes allowed during the first attempt to blow into the Intoxilyzer 8000, Deputy Randall allowed Ms. Havemeier additional time to attempt to register a result. Ms. Havemeier was unable or unwilling to give a proper breath sample during the three minutes she was provided with to give that breath sample. When no sample was obtained within that three minutes, Deputy Randall marked the test as a refusal and forwarded a copy of that test to the Department. Once Deputy Randall had determined that the test was a refusal he began to escort Ms. Havemeier to the jail. Ms. Havemeier at this juncture, asked if she could take an additional test. Deputy Randall testified that they had left the area where the Intoxilyzer machine was kept and he was not sure if the machine would be
readily available, that there was only about roughly 20-30 minutes left of the two hours after the time of Ms. Havemeier's driving and while it was possible that another test could have been administered there was not certainty that the test results would have been obtained within the two hour time period, and that he was one of two officers on duty in his jurisdiction and taking the additional time would have been a substantial inconvenience as he had other duties to attend too [sic].
[¶4] The hearing officer found " Havemeier refused to submit to the test or tests" and revoked her driving privileges for two years. The district court affirmed the ...