SBAND Seminar Materials DUI Case Law Update Materials | Page 4

Defense:

Jesse Lange

Facts:
A highway patrol officer observed a vehicle speeding and initiated a stop.
Stroh was identified as the vehicle's driver, and, noticing an odor of alcohol on Stroh's
breath, the officer administered field sobriety tests. Stroh failed the field tests and was
arrested for driving under the influence. At the jail the officer administered a chemical
test on the Intoxilyzer 5000 which resulted in a 0.16 percent BAC. During crossexamination, the officer admitted that he had left Stroh alone twice within 20 minutes of
the test, the second time being approximately 14 minutes before giving the breath test.
Procedure: The district court admitted the intoxilyzer results over objection from
Stroh arguing the State did not establish scrupulous compliance with the approved
method’s 20 minute waiting period. Stroh appealed the jury verdict of guilty and the ND
Supreme Court AFFIRMED.
Holding:
The admissibility of an Intoxilyzer test result is governed by N.D.C.C. 3920-07(5). Fair administration of an Intoxilyzer test may be established by proof that the
State Toxicologist's approved method for conducting the test has been scrupulously
followed. However, "scrupulous" compliance does not mean "hypertechnical"
compliance. The admissibility of a test result for alcohol concentration is a preliminary
question left to the discretion of the trial court.
Observing the person to be tested is not the only manner of "ascertaining" that the subject
had nothing to eat, drink, or smoke within twenty minutes prior to the collection of the
breath sample.
B.

Sentencing & Punishment

State v. Hayes, 2012 ND 9, 809 N.W.2d 309
Prosecutor:
Defense:

Elizabeth Pendlay
Benjamin Pulkrabek

Facts:
Hayes was stopped and arrested for driving under suspension by an officer
who personally recognized her and confirmed she was suspended. An inventory search
resulted in the discovery of marijuana on Hayes' person as well as $600 in cash. Law
enforcement officers also found $2,133 in cash in Hayes' purse. Hayes was charged with
DUS and possession of controlled substance. At the initial appearance the court granted
the prosecutor’s request for Hayes to submit to random drug-testing and warrantless
searches of her person, vehicle, and home.
Immediately after her court appearance officers requested consent to search Hayes’ home
and if she didn’t consent she risked violating her bond condition. The officers searched
Hayes’ home and found more items of drug paraphernalia.
Procedure: The district court denied Hayes’ motion to suppress based on and she was
convicted after a jury trial of all six charges. Hayes appealed and the ND Supreme Court
AFFIRMED AND REVERSED.

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