Background
On September 8, 2025, a Burleigh County sheriff’s deputy arrested Erik Stuart Hovey for driving under the influence of alcohol and transported him to the law enforcement center for chemical testing. The deputy, a certified Intoxilyzer® 8000 operator, administered a first test sequence beginning at 00:30; it ended at 00:37 when the instrument reported “Difference Too Great,” rendering it invalid. Under the state crime laboratory’s approved testing method, an invalid result requires the operator to wait 20 minutes before repeating the test. The deputy initiated a second sequence at 00:57—exactly 20 minutes after the first sequence ended—which reported a blood-alcohol concentration of 0.177. The North Dakota Department of Transportation suspended Hovey’s driving privileges for 91 days.
At the administrative hearing Hovey requested, he objected to admission of the second test record, relying on Gackle v. N.D. Dep’t of Transp., 2025 ND 37, 17 N.W.3d 610, in which the Supreme Court had suppressed a test result where the operator waited only 18 minutes between sequences. Hovey argued the 20-minute wait was not established, pointing to a header timestamp of 00:55 appearing above the second test sequence on the printed record—two minutes before the 00:57 diagnostic step. The hearing officer admitted the evidence, distinguished Gackle, and suspended Hovey’s license for 91 days. The District Court of Burleigh County affirmed, and Hovey appealed.
On appeal, Hovey pressed two arguments: (1) the Department failed to prove the required 20-minute inter-test waiting period was observed, and (2) the hearing officer abused his discretion by admitting the test results. He also contended that because the timestamps record only hours and minutes, rounding effects could mean the actual elapsed time was less than 20 minutes.
The Court’s Holding
The North Dakota Supreme Court affirmed, holding that the hearing officer did not err in admitting the second chemical test result. Applying Gackle‘s framework, the Court measured the waiting period from the end of the first test sequence (00:37) to the diagnostic step—the first step of the second sequence—at 00:57, yielding exactly 20 minutes. The Court rejected Hovey’s reliance on the 00:55 header notation, consistent with its analysis in Gackle, which held that the relevant interval runs between test sequences themselves rather than from a header timestamp printed above the sequence.
The Court also rejected Hovey’s rounding argument. The deputy testified that he waited 20 minutes after the first sequence terminated before initiating the second, that he followed the approved method, and Hovey neither cross-examined the deputy on this point nor offered rebuttal evidence. Given the deferential standard—whether a reasoning mind could conclude the facts were proved by the weight of the evidence—the record amply supported the hearing officer’s finding of compliance.
The Court reaffirmed that “scrupulous compliance” with the approved testing method does not demand hyper-technical perfection; a minor deviation bars admission only if it could have substantially affected the result. Here there was no deviation at all: the timestamp evidence and the operator’s uncontradicted testimony together established that the 20-minute wait was observed.
Key Takeaways
- The 20-minute waiting period required after a “Difference Too Great” Intoxilyzer result is measured from the end of the invalid test sequence to the diagnostic step of the next sequence—not from any header timestamp printed on the test record.
- Uncontradicted operator testimony that the approved method was followed is sufficient to satisfy the Department’s burden of proving fair administration, particularly when the defendant neither cross-examines the operator nor offers rebuttal evidence.
- A rounding-based challenge to minute-resolution timestamps does not overcome credible operator testimony absent some affirmative showing that the actual elapsed time fell short of 20 minutes.
- Gackle (18-minute wait = insufficient) is distinguished where the documented diagnostic step falls exactly 20 minutes after the prior invalid sequence ends.
Why It Matters
This decision clarifies the line drawn by Gackle and gives DUI practitioners and law enforcement a clear rule for Intoxilyzer retesting after an invalid “Difference Too Great” result: the clock runs from the last step of the failed sequence to the diagnostic step of the new sequence, and the timestamps on the printed test record are the primary evidence of that interval. Operators who document and testify to exact compliance with the 20-minute rule will likely survive suppression motions even when minor timestamp ambiguities exist.
For defense attorneys, the case underscores that a credible rounding or timestamp challenge requires affirmative evidence—cross-examination, an expert, or documentary rebuttal—not just argument. Passive reliance on the face of the record, without contesting the operator’s testimony, is unlikely to succeed before an administrative hearing officer applying a deferential evidentiary standard.