SBAND Seminar Materials DUI Case Law Update Materials | Page 10

Holding:
An officer must be certified as a chemical test operator to administer an
on-site screening test, but an officer need not be certified to request a driver to submit to
the test.
2) Olson v. ND DOT, 2013 ND 104
Prosecutor:
Defense:

Michael Pitcher
Jeff Nehring

Facts:
Olson was stopped for his vehicle swaying back and forth and crossing the
white line. Before the officer administered some field sobriety tests, he had Olson remove
his chewing tobacco. At 12:17 a.m. Olson failed the screening device. Olson was arrested
for DUI and he was administered the Intoxilyzer test, which indicated Olson's alcohol
concentration was .258 percent. The test record indicates the test began at 12:30 a.m. The
officer could not recall what time he began administering the field sobriety test but
estimated it usually took him 10 minutes to complete.
Procedure: ND DOT suspended Olson’s driving privileges and the district court
reversed the suspension concluding the 20 minute observation time was not obtained. ND
Supreme Court REVERSED.
Holding:
Observing a defendant is not the only manner of ascertaining that the
driver had nothing to eat, drink, or smoke within the twenty minutes prior to the
collection of the breath sample. Though the officer could not recall when he started the
tests, a reasoning mind reasonably could have concluded that the officer testified with
sufficient particularity how long they took to complete in this situation. Once the
Intoxilyzer test record and checklist is admitted into evidence, the department has
established prima facie that the officer followed the approved method and ascertained the
twenty-minute wait period. A defendant may rebut the department's prima facie case of
fair administration, but he must do more than raise the mere possibility of error.
3) Painte v. ND DOT, 2013 ND 95, 832 N.W.2d 319
Prosecutor:
Defense:

Douglas Anderson
Thomas Tuntland

Facts:
At approximately 2:49 a.m., officers responded to a property owner's
report that a vehicle was parked in her parking area for quite a while and that the vehicle
was running with somebody inside of it. After arriving at the location, the officer
observed a parked vehicle with the engine running and a female inside. The officer
observed Painte slumped over in the seat. There was a pool of vomit on the ground
outside the vehicle and Painte was bleeding on her nose. The officer also observed a
smell of alcohol and she had very red and bloodshot eyes. Painte was hard to understand
and could not follow directions. Painte failed the field sobriety tests and her blood test
came back at .217.

10