North Dakota Supreme Court hears challenge to Intoxilyzer 8000 procedures in Heustad license-suspension appeal

The North Dakota Supreme Court heard oral argument in file no. 20240297 on whether the Department of Transportation properly relied on an Intoxilyzer 8000 chemical-breath test to suspend Darren Heustad’s driving privileges after a trooper allegedly instructed Heustad to continue blowing after the machine’s tone had stopped.

Appearing for Heustad, attorney Mark Friess told the court the approved method issued by the state toxicologist makes compliance mandatory and that the operator’s conduct here violated that method: “The approved method ... requires compliance with both the procedure set forth in the written document and instructions displayed by the machine itself,” Friess said. Friess urged the court to reverse the Department of Transportation’s hearing officer and district court, remand the case to the agency and award Heustad attorney fees under the statute that governs successful administrative challenges.

Assistant attorney Michael Pitcher, arguing for the Department of Transportation, said the department established a prima facie case through documentary evidence and that the intoxilyzer’s printed test record showed two adequate subject samples. Pitcher argued the burden then shifted to Heustad to rebut the department’s showing and that the face of the test record did not show a deviation requiring exclusion. “The department’s position is that there is no actual violation or deviation from the approved method here,” Pitcher told the court.

The arguments focused on whether an operator’s instruction to continue blowing after an audible tone — which counsels described differently in courtroom argument — violates the approved method in a way that requires expert testimony to establish any effect on scientific reliability. Friess said the trooper told Heustad to “blow” 11 additional times after the tone stopped and that body-worn video, he said, showed the tone stopped when the display read 0.079; the hearing officer nonetheless admitted the test and suspended Heustad’s privileges. Pitcher responded that the intoxilyzer’s printed record in the administrative proceeding reflected a properly obtained first sample (0.096) and a second reported sample (0.09213) and that the record itself did not show the kind of facial irregularity seen in prior cases that led to reversal.

Both sides cited the court’s prior precedents addressing operator deviations and when a reviewing court must remand for an agency to justify results or when expert testimony is required. Cases discussed included Keller (2015), Ring Sacker, Wagner v. Baucus, Gilmore v. Levi, Price v. Directors and Detler; the parties debated how those precedents apply when the printed test record does not itself show an error but testimony indicates an operator did not follow an approved step.

Justices questioned whether the machine’s internal prompts and the approved method’s language treat “until the tone stops” as a strict stopping point or as a minimum requirement that can permissibly be exceeded. Counsel for Heustad said the approved method designates a specific point in time for stopping and that operators should not substitute their own judgment about whether more blowing is necessary; counsel for the department said the approved method and the printed record can establish the prima facie case and that absent an expert showing of material impact, continued blowing does not automatically invalidate the test.

The court took the case under advisement at the close of argument. No written decision was announced from the bench; the justices indicated they would issue a written opinion in due course.

Votes at a glance: none (oral argument; no decision announced).