May v. Sprynczynatyk

20040232 Daryl Jerome May, Petitioner and Appellant
v.
David A. Sprynczynatyk, Director,
Department of Transportation, Respondent and Appellee

Appeal from: District Court, East Central Judicial District, Cass County
Judge Wade L. Webb
Nature of Action: Transportation Dept.
Counsel:
Appellant: Vogel Law Firm
Appellee: Douglas Bruce Anderson , Att. General Office
Term: 11/2004   Argument: 11/22/2004  10:45am
ND cite: 2005 ND 76
NW cite: 695 N.W.2d 196

Listen to recording of oral argument in MP3 format

Issues: Appellant's Statement of the Issues:
I. Noncompliance with statute requires summary reversal.
II. The chemical test evidence was improperly considered.
A. The hearing officer made factual findings not supported by the testimony or record.
B. Irregularity in the test record required expert testimony.
C. Compliance with state toxicology procedures was not shown.
III. The Department impermissibly shifted the burden of persuasion and proof to the Appellant.

Appellee's Statement of the Issues:
1. Whether May failed to establish that a systematic disregard of the law exists in the filing of transcripts of testimony by the Department so as to warrant a sanction in the form of the reversal of the suspension of his driving privileges.
2. Whether the law enforcement officer's testimony supported a finding that a clerical error on the Intoxilyzer Test Record and Checklist could not have affected the reliability or accuracy of May's Intoxilyzer test, such that the hearing officer reasonably concluded the chemical test for intoxication was fairly administered.
3. Whether the law enforcement record describing the changing and usage of the standard solution used in May's Intoxilyzer breath-test analysis was properly admitted into evidence, such that the hearing officer reasonably concluded the chemical test for intoxication was fairly administered.
4. Whether the Department did not shift the burden of proof and persuasion regarding the administration of the chemical test for intoxication to May.

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Docket entries:
108/18/2004 NOTICE OF APPEAL: 08/17/2004
208/18/2004 ANNOUNCED DISQUALIFICATION: Kapsner, Carol Ronning
309/13/2004 APPELLANT BRIEF
409/13/2004 APPELLANT APPENDIX
509/14/2004 DISK - ATB
609/17/2004 Copies of the Admin Agency Docket Sheet and Judgement for Appellant's Brief - inserted
709/17/2004 RECORD ON APPEAL - includes #6 DOT record
810/14/2004 APPELLEE BRIEF
910/14/2004 DISK (e-mailed) AEB
1010/21/2004 SITTING WITH THE COURT: Bekken, James M.
1110/25/2004 REPLY BRIEF
1210/26/2004 DISK (e-mailed) RYB
1311/22/2004 APPEARANCES: Mark A. Friese; Douglas B. Anderson
1411/22/2004 ARGUED: Friese; Anderson (Vol. Z; page 57)
1511/22/2004 ORAL ARGUMENT WEBCAST
1604/11/2005 DISPOSITION: AFFIRMED
1704/11/2005 UNANIMOUS OPINION: Maring, Mary Muehlen
1804/11/2005 Costs on appeal taxed in favor of appellee
1904/11/2005 Judgment Mailed to Parties
2005/06/2005 MANDATE
2105/11/2005 RECEIPT SIGNED BY DISTRICT COURT CLERK'S OFFICE
2210/28/2011 EXPUNGED - Nonpermanent record items destroyed

Generated from Supreme Court Docket on 10/22/2014