Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Glaser v. North Dakota Department of Transportation

Supreme Court of North Dakota

October 17, 2017

Alexis Kae Glaser, Appellee
v.
North Dakota Department of Transportation, Appellant

         Appeal from the District Court of Burleigh County, South Central Judicial District, the Honorable James S. Hill, Judge.

          James 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.

          OPINION

          MCEVERS, JUSTICE.

         [¶ 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.

         I

         [¶ 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 ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.