North Dakota Supreme Court hears challenge over 20‑minute Intoxilyzer waiting‑period interpretation

At an oral argument on file number 20240247, counsel for Leanne Gackle and the North Dakota Department of Transportation disputed how to measure the 20‑minute waiting period required by the state's approved method for Intoxilyzer 8000 breath tests and whether the approved method was followed in Gackle's administrative hearing.

The question matters because the court's interpretation will determine whether breath-test results recorded on an Intoxilyzer 8000 are admissible in administrative proceedings and, by extension, whether the hearing officer's findings in this case must be upheld. Counsel and several justices focused on the approved method's wording and the lack of expert testimony in the administrative record.

Chad McCabe, attorney for the petitioner and appellant, argued that the approved method's language requires the operator to "wait the full 20 minutes before starting that next test." McCabe told the court: "the approved method does say in very specific language, you know, before beginning the next test... you need to first establish that 20 minutes has gone by before you even begin that next test." He emphasized that the hearing-officer's timing finding and the machine's internal logs are inconsistent with the officer's testimony that he waited 20 minutes, and stressed that the department produced no expert testimony to explain why any deviation would not affect the results: "without expert testimony, otherwise, we must follow that language."

Michael Pitcher, counsel for the North Dakota Department of Transportation, urged the court to read the approved method as measuring the 20‑minute period from the collection of breath samples rather than from activation of the instrument. Pitcher framed the dispute succinctly: "the primary point of contention is whether the 20 minute waiting period ... should be measured from when the breath samples are collected or from when the instrument is activated." He relied on prior case law and the department's interpretation that the relevant interval is between the subject's breath samples (the second and third samples recorded on the instrument in this case).

Justices and the chief justice questioned both sides on how the term "test" should be read, whether the testing-procedure steps in the approved method require using standard rules of statutory interpretation, and how the machine's display, diagnostic and air tests, and operator entries affect timing. Chief Justice Jensen asked whether any error in following the approved method could be harmless given that one of the subject tests in the record was well above the legal limit. McCabe replied that, without expert testimony, the court should enforce the approved method as written.

Both parties discussed related authorities cited during argument, including the approved method language requiring that an operator "ascertain that the subject has had nothing to eat, drink, or smoke within 20 minutes prior to the collection of the breath sample," references to the state toxicologist's training manual, and prior cases counsel invoked as guidance on when expert testimony is required to explain procedural deviations. The hearing officer's administrative record was central to the dispute: McCabe pointed to time stamps showing a second sample at "02:35" and an instrument-conclusion time at "02:36," while the next recorded subject sample was at "02:55," a 19‑minute gap according to McCabe's reading of the logs.

Both sides acknowledged the absence of a state toxicologist or similar expert witness at the administrative hearing. McCabe said that, in his experience, courts have required expert testimony to show that an uncompleted procedural step did not affect results, while Pitcher said the department met its prima facie case on the forms and that Gackle had not rebutted that showing.

The court did not rule from the bench. The justices took the case under advisement; no decision was announced at the argument.

The court record shows the central factual disputes the justices will have to resolve on appeal: how to define the start and end points of the 20‑minute waiting period in the approved method, whether an operator's on-form "yes" entry and instrument activation can coexist with a later breath-sample collection, and whether the absence of expert testimony requires strict enforcement of the approved method in this administrative setting.