HOVEY v. NORTH DAKOTA DEPARTMENT OF TRANSPORTATION (2026)

[¶1] Erik Stuart Hovey appeals from a district court judgment affirming an administrative hearing officer's decision suspending his driving privileges for 91 days. Hovey claims the Department of Transportation did not establish his chemical test was fairly administered and the hearing officer erroneously admitted the test results into the record. He argues the Department did not establish a 20-minute wait between the first and second test sequences. The hearing officer did not err in admitting the chemical test evidence. We affirm.

I

[¶2] A Burleigh County sheriff's deputy arrested Hovey for driving under the influence of alcohol on September 8, 2025, and transported him to the law enforcement center for chemical testing. The deputy, a certified operator of the Intoxilyzer® 8000, administered two chemical tests to Hovey. The first test sequence began at 00:30 and ended at 00:37, when the instrument reported “Difference Too Great,” rendering the test invalid. The deputy initiated the second sequence beginning at 00:57, 20 minutes after the first test was invalidated. The second chemical test reported Hovey's alcohol concentration as 0.177.

[¶3] The Department held an administrative hearing at Hovey's request. The deputy testified he waited 20 minutes after the first test terminated before he initiated the second sequence as required under the approved testing method. Hovey objected to admission of the second chemical test record, relying on Gackle v. N.D. Dep't of Transp., 2025 ND 37, 17 N.W.3d 610. The hearing officer admitted the record over Hovey's objection and granted Hovey leave to file a post-hearing brief. After receiving Hovey's brief, the hearing officer distinguished Hovey's case from Gackle, where this Court held the operator did not scrupulously comply with the required 20-minute wait between tests. Id. ¶ 22. The hearing officer found the first test sequence ended at 00:37, the deputy waited 20 minutes, and the second test sequence “began with diagnostic [step] at 00:57.” The hearing officer rejected Hovey's reliance on a header timestamp showing 00:55 on the top of the second test record, concluding the time “does not appear as part of the second test sequence—rather it appears on the Intoxilyzer Test Record and Checklist above the test sequence.” The hearing officer suspended Hovey's driving privileges for 91 days. The district court affirmed, concluding the operator followed the approved method by waiting the required 20 minutes between tests. Hovey appeals.

II

[¶4] This Court reviews the decision of the administrative agency, not the decision of the district court. LeClair v. Sorel, 2018 ND 255, ¶ 5, 920 N.W.2d 306. The Court must affirm the agency's decision unless one of the eight grounds listed in N.D.C.C. § 28-32-46 applies. Id. Hovey appeals on two enumerated grounds: the order does not accord with the law, and a preponderance of the evidence does not support the findings. N.D.C.C. § 28-32-46(1) and (5). This Court gives great deference to the agency's factual determinations and asks only “whether [a] reasoning mind reasonably could have determined that the factual conclusions reached were proved by the weight of the evidence from the entire record.” LeClair, ¶ 6 (quoting Filkowski v. Dir., N.D. Dep't of Transp., 2015 ND 104, ¶ 6, 862 N.W.2d 785). This Court reviews a hearing officer's evidentiary rulings for an abuse of discretion. Id. Whether established facts meet a legal standard presents a question of law, which this Court reviews de novo. State v. Heier, 2016 ND 158, ¶ 7, 883 N.W.2d 454.

[¶5] Section 39-20-07(5), N.D.C.C., governs the admission of an Intoxilyzer® 8000 test record, and provides the results of the test “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.” A test is fairly administered when the record shows scrupulous compliance with the approved method. State v. Stroh, 2011 ND 139, ¶ 4, 800 N.W.2d 276. “Scrupulous” compliance does not demand hyper-technical perfection, and a minor deviation does not bar admission unless the deviation could have substantially affected the result. Keller v. N.D. Dep't of Transp., 2015 ND 81, ¶ 8, 861 N.W.2d 768. The Department bears the burden to prove fair administration. Ringsaker v. Dir., N.D. Dep't of Transp., 1999 ND 127, ¶ 11, 596 N.W.2d 328. When a test record reveals “Difference Too Great,” the approved method provides the test is invalid and requires the operator to wait 20 minutes before repeating the test. N.D. Off. of Att’y Gen. Crime Lab’y Div., Toxicology Section/Breath Program, Approved Method to Conduct Breath Tests 8. In Gackle, we held an operator failed to scrupulously follow the approved method by waiting only 18 minutes before initiating a new test sequence after an earlier test record displayed “Difference Too Great.” 2025 ND 37, ¶¶ 18-22.

III

[¶6] At the hearing, the Department offered the Intoxilyzer® 8000 test record showing the first sequence ended at 00:37 and the diagnostic step of the second sequence occurred 20 minutes later at 00:57. Additionally, the test operator testified he waited 20 minutes after the first sequence terminated before initiating the second test sequence.

[¶7] The approved testing method defines the sequence of test steps beginning with a “diagnostic,” followed by testing the “room air, subject test, room air, standard gas, room air, subject test, and room air.” Gackle, 2025 ND 37, ¶ 21; N.D. Off. of Att’y Gen. Crime Lab’y Div., Toxicology Section/Breath Program, Approved Method to Conduct Breath Tests 4-9. This Court determined the approved method requires a 20-minute wait before initiation of the second test sequence, which begins with the diagnostic test. Gackle, ¶¶ 20-22. This Court found the test in Gackle failed to follow the approved testing method because only 18 minutes separated the two sequences—the first test reported “Difference Too Great” and invalidated at 02:36, and the diagnostic step of the second test occurred at 02:54. Id. ¶ 23. A header on the second test record displayed an even earlier time, but as prescribed by the approved method this Court measured the waiting period from the first step of the test sequence—the diagnostic test— rather than from the header notation. Id. ¶¶ 3, 18. Unlike Gackle, where the diagnostic test occurred 18 minutes after the first sequence, the diagnostic test in Hovey's second test sequence occurred at 00:57, 20 minutes after the first sequence ended at 00:37.

[¶8] Hovey argues the timestamps, which display only hours and minutes, cannot establish the 20-minute wait, because rounding could place the actual elapsed time under 20 minutes. The test operator testified he waited 20 minutes after the first test terminated before beginning the second sequence. The operator testified he followed the approved method. Hovey neither offered evidence to rebut the operator's testimony nor cross-examined the operator regarding compliance with the waiting period. The record supports the hearing officer's conclusions that 20 minutes elapsed between the two test sequences and the test operator followed the approved method. The record supports the Department's 91-day driver's license suspension.

IV

[¶9] The hearing officer did not err in overruling Hovey's objection and admitting the results of the chemical test. We affirm.

Friese, Justice.

[¶10] Lisa Fair McEvers, C.J. Jerod E. Tufte Jon J. Jensen Douglas A. Bahr Mark A. Friese