from the District Court of Burleigh County, South Central
Judicial District, the Honorable James S. Hill, Judge.
W. Martens (argued) and Chad R. McCabe (on brief), Bismarck,
N.D., for appellee.
Michael T. Pitcher, Assistant Attorney General, Bismarck,
N.D., for appellant.
1] The North Dakota Department of Transportation appeals from
a district court judgment reversing a Department hearing
officer's decision to suspend Alexis Glaser's driving
privileges for two years. We conclude Glaser failed to rebut
the prima facie evidence of the time of the accident on the
report and notice, showing her chemical Intoxilyzer test was
administered within two hours of driving. We further conclude
a reasoning mind could reasonably conclude Glaser drove or
was in physical control of a motor vehicle within two hours
of performance of a chemical test was supported by a
preponderance of the evidence on the entire record. We
reverse the judgment and reinstate the suspension of
Glaser's driving privileges for two years.
2] In June 2016, Bismarck Police Officer Del Gallagher
responded to assist in a motor vehicle crash in the city of
Bismarck at the request of Officer Rob Rasmussen. When
Gallagher arrived, he observed two individuals standing
outside the vehicle that appeared to have struck a parked
car. Rasmussen told Gallagher that Glaser appeared to be
intoxicated and that she was the driver of the vehicle.
Rasmussen indicated Glaser failed the horizontal gaze
nystagmus test and performed poorly on the walk-and-turn and
one-leg stand tests. Gallagher continued the investigation
for driving under the influence. Gallagher observed that
Glaser's eyes were glossy, she had a dazed appearance,
and a very strong odor of alcohol was coming from her. Glaser
admitted to drinking six beers in two hours. Glaser agreed to
taking an onsite screening test, showing her blood alcohol
content was above the legal limit.
3] Gallagher arrested Glaser for DUI and transported her to
the Bismarck Police Department. At the police department,
Glaser agreed to take a chemical Intoxilyzer breath test and
was read her Miranda rights. Glaser's blood alcohol
content registered at.199 percent by weight. Gallagher issued
a report and notice to Glaser, notifying Glaser of the
Department's intent to revoke her driving privileges.
Glaser requested an administrative hearing.
4] At the hearing, Gallagher testified that Rasmussen was at
the site of a motor vehicle crash and requested a second unit
to help him. Gallagher further testified he did not know
exactly when the accident occurred and indicated the time of
driving noted at 2:37 a.m. on the report and notice he issued
was the time of the call reporting the accident. The report
and notice indicating the breath specimen was obtained at
3:55 a.m. was admitted into evidence. The hearing officer
also offered and admitted a motor vehicle crash report
submitted by Rasmussen over Glaser's objections. The
crash report recorded the time of crash as 2:37 a.m. The
hearing officer provided the following analysis:
Ms. Glaser's argument was that the time of driving could
not be established so it cannot be established that the test
was administered within two hours of driving.
Officer Rasmussen, the officer, Officer Gallagher had contact
and conversation with prior to approaching Ms. Glaser
prepared and submitted to the Department as a regularly kept
record a crash report of the accident to which he was the
responding officer, and was investigating. The greater weight
of the evidence, including inferences taken from the fact
that Ms. Glaser did not protest or state that she was not the
driver, the fact that she was present at the hearing and did
not take the stand, and that the information in the crash
report shown on Exhibit 1F matches the information on the
report and notice form, indicates that Ms. Glaser was the
driver of her vehicle that evening, that a crash occurred
at or near 2:37 am. The test was administered at
3:55 leaving approximately 42 minutes before the two hours in
which the test could be administered expired. Given the
communication between officers prior to testing, Officer
Gallagher's reliance on the information gathered by a
fellow officer and communicated to him is enough for him to
rely on when making a determination that Ms. Glaser was the
driver of the vehicle and to ensure the test was administered
within two hours of the time of driving.
(Emphasis added.) The hearing officer suspended Glaser's
driving privileges for a period of two years.
5] Glaser appealed the hearing officer's decision to the
district court. On appeal, Glaser argued the Department
failed to present any admissible evidence showing the
chemical Intoxilyzer test was administered within two hours
of driving. Glaser also argued the motor vehicle crash
report, which contained the time of driving, was inadmissible
for lack of foundation and hearsay.
6] The district court held the motor vehicle crash report was
admissible as it fell within the public records exception to
the hearsay rule. The court also held Glaser failed to show
the source of the information indicated a lack of
trustworthiness. However, the court agreed with Glaser that
the Department failed to establish the time of driving was
within two hours of Glaser's chemical test. Relying on
Dawson v. N.D. Dep't of Transp., 2013 ND 62, 830
N.W.2d 221, the court held there was no evidence in the
record to support the report and notice time of driving as
2:37 a.m. As in Dawson, the court similarly found
the time of the accident on the motor vehicle crash report
was unsupported by the record, and although admissible, the
time of driving was called into question ...