                Filed 3/13/19 by Clerk of Supreme Court
                       IN THE SUPREME COURT
                      STATE OF NORTH DAKOTA


                                   2019 ND 80


Shaun Robert Ebach,                                                      Appellant

      v.

North Dakota Department
of Transportation,                                                        Appellee


                                  No. 20180290


      Appeal from the District Court of Ramsey County, Northeast Judicial District,
the Honorable Donovan J. Foughty, Judge.

      AFFIRMED.

      Opinion of the Court by McEvers, Justice.

       Luke T. Heck (argued) and Drew J. Hushka (on brief), Fargo, ND, for
appellant.

      Nici Meyer, Assistant Attorney General, Bismarck, ND, for appellee.
                          Ebach v. N.D. Dep’t of Transp.
                                    No. 20180290


       McEvers, Justice.
[¶1]   Shaun Robert Ebach appeals from a district court judgment affirming an
administrative hearing officer’s decision to suspend Ebach’s driving privileges for
180 days for driving under the influence of alcohol. On appeal, Ebach argues the
administrative hearing officer erred by admitting invalid chemical breath test records
and by making result-oriented findings of fact, and that he is entitled to attorney fees
and costs. We conclude the test record was properly admitted, and a reasoning mind
reasonably could have concluded the administrative hearing officer’s finding that the
officer who administered the Intoxilyzer test ascertained a 20-minute waiting period
prior to administering the test is supported by the weight of the evidence on the entire
record. Therefore, we affirm the district court judgment.


                                            I
[¶2]   On February 18, 2018, Officer Nickolas Holter arrested Ebach for driving
under the influence. Officer Holter transported Ebach to the law enforcement center,
and administered a chemical breath test (“Intoxilyzer”) which indicated Ebach’s
alcohol content was over the legal limit. On the Intoxilyzer Test Record and
Checklist, Officer Holter certified that the 20-minute waiting period was ascertained
and that he followed the approved method and instructions displayed by the
Intoxilyzer in conducting the test. The Intoxilyzer Test Record and Checklist stated
the test result was obtained at 2:20 a.m. Officer Holter also completed a Report and
Notice form which stated Ebach was observed driving at 2:03 a.m., was arrested at
2:12 a.m., and provided a breath specimen for the Intoxilyzer test at 2:20 a.m.
[¶3]   Ebach requested and received an administrative hearing before the North
Dakota Department of Transportation (“the Department”). Several items were entered
into evidence without objection at the hearing, including: the list of certified chemical

                                           1
test operators, the list of approved chemical testing devices, the Intoxilyzer 8000
installation and repair checkout, the approved method to conduct breath test with the
Intoxilyzer 8000, and the Ethanol breath standard analytical report. Officer Holter
testified that he filled out the Report and Notice form and certified a copy of the
Intoxilyzer Test Record and Checklist and that he followed the approved method in
administering the Intoxilyzer test. Following Officer Holter’s testimony, the hearing
officer offered Exhibit 1b, the Report and Notice form, and Exhibit 1c, the Intoxilyzer
Test Record and Checklist for admission into evidence. Ebach objected, arguing the
Report and Notice form failed “to establish adequate approved method was conducted
as it pertains to the times on its face,” and that the Intoxilyzer Test Record and
Checklist failed to show “scrupulous compliance with the approved method” for
chemical testing. The hearing officer overruled the objections and admitted both.
[¶4]   After the exhibits were admitted, Officer Holter testified that the Intoxilyzer
machine was running six minutes behind his watch at the time of the test, and that the
Intoxilyzer test result was actually obtained at 2:26 a.m., not 2:20 a.m. Officer Holter
testified that he relied on his watch to ascertain the 20-minute waiting period.
[¶5]   Following the administrative hearing, the Department issued its decision,
suspending Ebach’s driving privileges for 180 days. The Department found:
       Holter used his watch to ascertain the 20 minute waiting period, before
       administering the test on an approved and installed Intoxilyzer 8000
       according to the approved method. Though the Intoxilyzer test record
       shows the device started with the diagnostic at 02:19, the time on the
       device was behind that on Holter’s watch. According to the test record,
       Subject Test 1 was obtained at 02:20 and Subject Test 2 was obtained
       at 02:26. The “Reported AC” of 0.208 was obtained at 02:20 (2:20
       a.m.) from the lower of the two subject tests. Contrary to the time on
       the test record, the test sample was actually obtained about 23 minutes
       after Holter stopped and contacted Ebach. There is no evidence Ebach
       had anything in his mouth during his time with Holter. The prima facie
       showing of the test record that the 20 minute waiting period had been
       ascertained has not been rebutted. The test was fairly administered.
[¶6]   Ebach appealed the Department’s decision to the district court. The court
affirmed the Department’s decision.

                                           2
[¶7]     On appeal, Ebach argues the hearing officer erred by admitting the Intoxilyzer
Test Record and Checklist into evidence without adequate foundation, and making
result-oriented findings of fact. Ebach also argues he is entitled to attorney fees and
costs.


                                            II
[¶8]     Our well-established standard of review for driving privilege suspensions is set
forth below:
               We review a decision to suspend a person’s driving privileges
         under N.D.C.C. ch. 28-32, the Administrative Agencies Practice Act.
         The review is limited to the record before the administrative agency.
         We will not, however, make independent findings or substitute our
         judgment. We will only determine whether a reasoning mind
         reasonably could have concluded the findings were supported by the
         weight of the evidence from the entire record. An administrative
         agency’s decision must be affirmed unless:
               1.     The order is not in accordance with the law.
               2.     The order is in violation of the constitutional
                      rights of the appellant.
               3.     The provisions of this chapter have not been
                      complied with in the proceedings before the
                      agency.
               4.     The rules or procedure of the agency have not
                      afforded the appellant a fair hearing.
               5.     The findings of fact made by the agency are not
                      supported by a preponderance of the evidence.
               6.     The conclusions of law and order of the agency
                      are not supported by its findings of fact.
               7.     The findings of fact made by the agency do not
                      sufficiently address the evidence presented to the
                      agency by the appellant.
               8.     The conclusions of law and order of the agency
                      do not sufficiently explain the agency’s rationale
                      for not adopting any contrary recommendations
                      by a hearing officer or an administrative law
                      judge.
         N.D.C.C. § 28-32-46.
Mees v. N.D. Dep’t of Transp., 2013 ND 36, ¶ 9, 827 N.W.2d 345 (internal quotations
and citations omitted). “This Court gives deference to the agency’s findings and will
                                            3
not substitute its own judgment for that of the agency.” Lee v. N.D. Dep’t of Transp.,
2004 ND 7, ¶ 9, 673 N.W.2d 245 (citation omitted). “Questions of law are fully
reviewable on appeal.” Mees, at ¶ 9. (citation omitted). “The administrative hearing
officer resolves the underlying factual disputes.” Lee, at ¶ 9.


                                         III
[¶9]   Ebach argues the Intoxilyzer Test Record and Checklist should not have been
admitted into evidence because the records showed lack of scrupulous compliance
with the required 20-minute waiting period.
[¶10] Section 39-20-05(4), N.D.C.C., states in pertinent part:
       At a hearing under this section, the regularly kept records of the
       director and state crime laboratory may be introduced. Those records
       establish prima facie their contents without further foundation. For
       purposes of this chapter, the following are deemed regularly kept
       records of the director and state crime laboratory:
              a.       . . . a certified copy of the checklist and test
                     records received by the director from a certified
                     breath test operator;
              b.     Any copy of a certified copy of a certificate of the
                     director of the state crime laboratory or the
                     director’s designee relating to approved methods,
                     devices, operators, materials, and checklists used
                     for testing for alcohol concentration or the
                     presence of drugs received by the director from
                     the director of the state crime laboratory or the
                     director’s designee, or that have been
                     electronically posted with the state crime
                     laboratory division of the attorney general at the
                     attorney general website; and
              c.     Any copy of a certified copy of a certificate of the
                     director of the state crime laboratory designating
                     the director’s designees.




                                          4
(Emphasis added.) We have previously recognized “[t]hese records establish their
contents without further foundation.” Salter v. Hjelle, 415 N.W.2d 801, 804 (N.D.
1987).1
[¶11] Section 39-20-07, N.D.C.C., also addresses admitting chemical breath test
records into evidence and states, in part:
       Upon the trial of any civil or criminal action or proceeding arising out
       of acts alleged to have been committed by any individual while driving
       or in actual physical control of a motor vehicle while under the
       influence of intoxicating liquor, drugs, or a combination thereof,
       evidence of the amount of alcohol concentration or presence of other
       drugs, or a combination thereof, in the individual’s blood, breath, or
       urine at the time of the act alleged as shown by a chemical analysis of
       the blood, breath, or urine is admissible. For the purpose of this
       section:
               ....
               5.     The results of the chemical analysis must be
                      received in evidence when it is shown that the
                      sample was properly obtained and the test was
                      fairly administered, and if the test is shown to
                      have been performed according to methods and
                      with devices approved by the director of the state
                      crime laboratory or the director’s designee, and
                      by an individual possessing a certificate of
                      qualification to administer the test issued by the
                      director of the state crime laboratory or the
                      director’s designee. . . . .
               6.     The director of the state crime laboratory or the
                      director’s designee may appoint, train, certify, and
                      supervise field inspectors of breath testing
                      equipment and its operation, and the inspectors
                      shall report the findings of any inspection to the
                      director of the state crime laboratory or the
                      director’s designee for appropriate action. Upon
                      approval of the methods or devices, or both,
                      required to perform the tests and the individuals
                      qualified to administer them, the director of the
                      state crime laboratory or the director’s designee


       1
       Since Salter, the statute has moved emphasized language into its own
subsection although the substance remains unchanged from 1987.
                                             5
                      shall prepare, certify, and electronically post a
                      written record of the approval with the state crime
                      laboratory division of the attorney general at the
                      attorney general website, and shall include in the
                      record:
                      a.     An annual register of the specific testing
                             devices currently approved, including
                             serial number, location, and the date and
                             results of last inspection.
                      b.     An annual register of currently qualified
                             and certified operators of the devices,
                             stating the date of certification and its
                             expiration.
                      c.     The operational checklist and forms
                             prescribing the methods currently
                             approved by the director of the state crime
                             laboratory or the director’s designee in
                             using the devices during the administration
                             of the tests.
                      d.     The certificate of the director of the state
                             crime laboratory designating the
                             director’s designees.
                      e.     The certified records electronically posted
                             under this section may be supplemented
                             when the director of the state crime
                             laboratory or the director’s designee
                             determines it to be necessary, and any
                             certified supplemental records have the
                             same force and effect as the records that
                             are supplemented.
                      f.     The state crime laboratory shall make the
                             certified records required by this section
                             available for download in a printable
                             format on the attorney general website.
(Emphasis added.) We have previously stated, “[t]he purpose of § 39-20-07(5) and
(6) is to ease the requirements for admissibility of chemical test results while ensuring
that the test upon which the results are based is fairly administered.” Salter, 415
N.W.2d at 803. In Salter, we concluded N.D.C.C. § 39-20-05 and § 39-20-07
revealed the legislature intended a certified copy of the checklist along with the
documents described in § 39-20-07(6) are “the necessary and sufficient means to

                                           6
render test results admissible without further foundation.” Salter, at 804. Since our
opinion in Salter, N.D.C.C. § 39-20-07(6) has been amended adding subsections (d),
(e), and (f).
[¶12] The hearing officer entered into evidence (1) a certified copy of the Intoxilyzer
Test Record and Checklist, (2) a list of the approved chemical testing devices, (3) a
list of certified chemical test operators, (4) the approved method to conduct breath
tests with the Intoxilyzer 8000 (an operational checklist and form prescribing the
methods approved in using the device administered), and (5) a memo describing
designees of the state crime laboratory director. The approved method to conduct
breath tests with the Intoxilyzer 8000 states: “When the test is conducted according
to this method it is considered to be fairly administered.”         These items—the
documents referenced in N.D.C.C. § 39-20-07(6)—taken together render the
Intoxilyzer Test Record and Checklist admissible without further foundation. Beyond
relying solely on documentary foundation, however, the hearing officer also elicited
testimony from Officer Holter before admitting the exhibits, that he followed the
approved method when administering the Intoxilyzer test and that he certified a copy
of the Intoxilyzer Test Record and Checklist and sent it along with the Report and
Notice form.
[¶13] Once the Intoxilyzer Test Record and Checklist is admitted into evidence, the
Department establishes prima facie its contents without further foundation; if Ebach
wished to rebut the Department’s documentary foundation of fair administration “by
establishing either a deviation from approved procedures or a lack of fair
administration despite compliance with approved procedures,” he had the opportunity
and the burden to present sufficient evidence accordingly. See Thorsrud v. N.D.
Dep’t of Transp, 2012 ND 136, ¶ 10, 819 N.W.2d 483 (citation omitted). “The
Intoxilyzer Test Record and Checklist is, therefore, presumed to show fair
administration of the approved method until the defendant shows that the evidence as
a whole clearly negates the presumed fact.” Mees, 2013 ND 36, ¶ 12 (citation and
quotation omitted) (emphasis added). “[U]nless the defendant introduces enough

                                          7
evidence to rebut th[e] foundation of fair administration, evidence discrediting the test
results will affect the weight given the blood-test result and not its admissibility.”
State v. Zimmerman, 516 N.W.2d 638, 642 (N.D. 1994) (internal citation and
quotation omitted) (emphasis added); see also Kiecker v. N.D. Dep’t of Transp., 2005
ND 23, ¶ 10, 691 N.W.2d 266 (“Under the statute, testimony disputing the facts
contained in properly completed documents will generally affect the weight given to
the test, not its admissibility.”).
[¶14] Here, Ebach attempted to rebut the presumption of fair administration by
pointing out that the face of the Report and Notice form showed Officer Holter did
not follow the approved method by failing to adhere to the 20-minute waiting period.
However, according to Officer Holter’s testimony, he made sure Ebach had nothing
in his mouth before administering the first breath screening test, which he estimated
occurred roughly ten minutes after he initiated the traffic stop.      He testified that
Ebach had nothing to eat, drink, or smoke from the time of the stop to the time of the
first breath screening test. He testified he relied on his watch to ascertain the 20-
minute waiting period required for administering the Intoxilyzer. Ebach presented no
rebuttal evidence that there was anything in his mouth in the 20 minutes prior to the
administration of the Intoxilyzer test other than testimony elicited from Officer Holter
that he did not correct the time discrepancy between his watch and the Intoxilyzer on
the Intoxilyzer Test Record and Checklist.
[¶15] Ebach’s attempt to rebut the presumption of fair administration appears to be
the following line of questioning on cross-examination:
       MR. HECK:                      And you would agree that the Approved
                                      Method of Chemical Testing reflects that
                                      if there is an inaccurate time on the report
                                      or on the Chemical Test Checklist that you
                                      are to make modifications to correct times;
                                      right?
       OFFICER HOLTER:                Possibly.
       MR. HECK:                      And you agree you didn’t manually or
                                      through the machine or by hand change the
                                      times to reflect the 2:26 time you testified
                                      to?
                                            8
       OFFICER HOLTER:               I did not, I just put that into my report.
In Kiecker, this Court held steps not expressly included in the prescribed methods
provided by the State Toxicologist are not foundational requirements for the
admission of Intoxilyzer test records. 2005 ND 23, ¶ 13. The driver in Kiecker
objected to the admission of the Intoxilyzer report at an administrative hearing
because he claimed the Department failed to show the Intoxilyzer machine was
recalibrated after it was moved. Id. at ¶ 11. This Court reiterated its prior holding
that “[u]nless ‘the State Toxicologist includes in the approved method . . . a specific
reference to a supplemental filing, stating that it is a required part of the approved
method for fair administration of a test, we will not infer that a filed document is part
of the foundational requirement for proving fair administration.’” Id. at ¶ 12 (quoting
City of Bismarck v. Bosch, 2005 ND 12, ¶ 11, 691 N.W.2d 260). Likewise here the
approved method for conducting breath tests, admitted into evidence without
objection, specifically provides:
       If upon review, the operator determines any information entered prior
       to testing or during the test is incorrect, the operator may amend the
       printed test record by crossing out the incorrect information and writing
       the correction on the printed test record. Note: Entered information
       does not have any effect on the subject’s reported breath alcohol
       concentration. Incorrect data in these areas will not cause the test to
       be invalid. The operator may correct the following items if necessary:
               ....
               b.      Date and Time
The language of the approved method does not make correction of inaccuracies in
date and time a required part of the approved method for fair administration of the
test. Therefore, to lay a proper foundation for the admission of the Intoxilyzer Test
Record and Checklist, the Department was not required to show Officer Holter was
required to correct an inaccurate time on the Intoxilyzer Test Record and Checklist.
Here, the documentary evidence and the testimony of Officer Holter, who
administered the test, showed scrupulous compliance with the methods approved by
the State Toxicologist.



                                           9
[¶16] Ebach cites Ringsaker v. N.D. Dep’t of Transp., 1999 ND 127, 596 N.W.2d
328 to support his position; however, in that case, a flaw was ascertainable when
viewing the Intoxilyzer test result on its own because there, the Intoxilyzer printed an
incorrect figure (“22/*0/17”) on the results where the date should have been. Id. at
¶ 3. Here, the Intoxilyzer Test Record and Checklist on its face shows no flaw. The
Intoxilyzer Test Record and Checklist reads “20 minute waiting period ascertained?
Y” and “I followed the Approved Method and the instructions displayed by the
Intoxilyzer in conducting this test.” Only when viewed alongside the Report and
Notice form is any discrepancy apparent.
[¶17] The hearing officer, in his decision, concluded that Officer Holter did ascertain
the 20-minute waiting period, and that Ebach failed to rebut by presenting evidence
that anything was in his mouth during the waiting period. Relying on the record
before the hearing officer, we hold a reasoning mind reasonably could have concluded
the hearing officer’s finding that the officer who administered the Intoxilyzer test
ascertained a 20-minute waiting period prior to administering the test is supported by
the weight of the evidence.


                                          IV
[¶18] Because we are affirming the district court’s judgment affirming the hearing
officer’s decision to suspend Ebach’s driving privileges, we need not address Ebach’s
argument relating to attorney fees and costs.


                                           V
[¶19] We affirm the district court judgment.
[¶20] Lisa Fair McEvers
      Daniel J. Crothers
      Jerod E. Tufte
      Jon J. Jensen
      Gerald W. VandeWalle, C.J.




                                          10
