Meiers v. NDDOT

                   IN THE SUPREME COURT
                   STATE OF NORTH DAKOTA

                                  

Lee Richard Meiers,                                                   Appellee
      v.
North Dakota Department of Transportation,                           Appellant



                                 No. 20240215

Appeal from the District Court of Mountrail County, North Central Judicial
District, the Honorable Stacy J. Louser, Judge.

REVERSED.

Opinion of the Court by Bahr, Justice.

Chad R. McCabe, Bismarck, ND, for appellee.

Michael T. Pitcher, Assistant Attorney General, Bismarck, ND, for appellant.
                               Meiers v. NDDOT
                                 No. 20240215

Bahr, Justice.

[¶1] The North Dakota Department of Transportation appeals from a district
court judgment reversing the hearing officer’s decision suspending Lee Meiers’s
driving privileges. On appeal, the Department argues it had authority to suspend
Meiers’s driving privileges. We reverse the district court’s judgment and
reinstate the Department’s decision suspending Meiers’s driving privileges.

                                        I

[¶2] On December 19, 2023, a law enforcement officer arrested Meiers for
driving under the influence. Following the arrest, the officer read Meiers the
implied consent advisory and requested Meiers take a chemical breath test.
Meiers consented to take the breath test, which the officer conducted. The breath
test showed Meiers had an alcohol concentration above the legal limit for
driving.

[¶3] The officer completed and certified a report and notice form. The report
and notice form is a one-page document completed by an officer. The report and
notice form documents information about the arrest, including whether a
specimen for a chemical test was obtained, when it was obtained, and the test
result. Above the space for the officer’s signature, the report and notice form
reads, “I personally certify as a law enforcement officer that this written report
is true and correct to the best of my knowledge at the time of completing this
report.”

[¶4] The officer printed the test record and checklist. The test record and
checklist is a one-page document the Intoxilyzer machine prints at the end of a
chemical breath test. The following language precedes the operator’s signature
line on the test record and checklist: “I followed the Approved Method and the
instructions displayed by the Intoxilyzer in conducting this test.” The officer
signed the test record and checklist. The officer gave to Meiers the driver’s copy
of the report and notice form and a copy of the signed test record and checklist.
The officer then forwarded to the Department a copy of the certified report and

                                        1
notice form and a copy of the signed test record and checklist. The officer did not
certify the test record and checklist before forwarding it to the Department. The
certification language absent from the test record and checklist certifies the
undersigned has custody of the original public record, that the document is a
true and correct copy of the original document, and that it is maintained as part
of the office’s activities.

[¶5] Meiers requested an administrative hearing. At the hearing, after the
officer testified to the test record and checklist’s authenticity, the Department
offered the uncertified test record and checklist into evidence. Meiers objected,
arguing the test record and checklist was not certified under N.D.C.C. § 39-20-
03.1 and thus the Department lacked authority to suspend his driving privileges.
The hearing officer overruled the objection and admitted the test record and
checklist into evidence. At the end of the hearing, Meiers renewed his objection
to the admission of the test record and checklist due to it not being certified. The
hearing officer concluded the test result and checklist was admissible and the
Department had authority to suspend Meiers’s driving privileges. The hearing
officer suspended Meiers’s driving privileges for 180 days.

[¶6] Meiers appealed to the district court. The court reversed the hearing
officer’s decision. The court concluded a certified copy of the test record and
checklist was required to invoke the Department’s authority and, because the
test record and checklist was not certified, the Department did not have
authority to suspend Meiers’s driving privileges.

                                         II

[¶7] “The Administrative Agencies Practice Act, N.D.C.C. ch. 28-32, governs
our review of an administrative decision to suspend or revoke a driver’s license.”
Schock v. N.D. Dep’t of Transp., 

, 

. In reviewing
an administrative decision, “[w]e review the Department’s original decision,
giving deference to its findings of fact and reviewing its legal conclusions de
novo.” Goff v. Panos, 

, ¶ 6, 

. This Court must affirm
the Department’s decision unless it determines a statutory ground for reversal is
present. N.D.C.C. § 28-32-46; N.D.C.C. § 28-32-49 (“The judgment of the district


                                         2
court in an appeal from an order . . . of an administrative agency or the
commission may be reviewed in the supreme court on appeal in the same
manner as provided in section 28-32-46[.]”). One ground for reversal is if the
Department’s order “is not in accordance with the law.” N.D.C.C. § 28-32-46(1).
The issue here is whether the hearing officer’s decision the Department had
authority to suspend Meiers’s driving privileges is in accordance with the law.
Kirkpatrick v. N.D. Dep’t of Transp., 

, ¶ 8, 

. That is a
question of law we review de novo. Koenig v. N.D. Dep’t of Transp., 

, 

.

                                        III

[¶8] The Department argues it had authority under N.D.C.C. § 39-20-04.1 to
suspend Meiers’s driving privileges because the officer’s certification of the test
record and checklist is not a basic and mandatory provision of the law that must
be met for the Department to have authority to suspend a person’s driving
privileges.

                                         A

[¶9] In Kirkpatrick, 

, ¶¶ 10-12, this Court explained the difference
between “jurisdiction” and “authority.” We explained the Department has
jurisdiction to suspend a person’s driving privileges under N.D.C.C. ch. 39-20.
Id. ¶¶ 12-13. However, it only has authority to suspend a person’s driving
privileges when its jurisdiction is invoked by basic and mandatory statutory
requirements being met. Id.

[¶10] Over the years, this Court has repeatedly used the phrase “basic and
mandatory provisions” or “basic and mandatory statutory requirements” when
determining whether the Department has authority to suspend driving
privileges. See, e.g., Christiansen v. Panos, 

, 

 (“This
Court has addressed questions related to the Department’s authority to suspend
driving privileges by analyzing whether the statutory provisions at issue were
‘basic and mandatory.’”); Haynes v. Dir., Dep’t of Transp., 

, 

 (“The Department’s authority to revoke or suspend a person’s
driving privileges is given by statute, and the Department must meet the basic

                                         3
and mandatory provisions of the statute to have authority to revoke or suspend
a person’s driving privileges.”); Schock, 

, ¶ 33 (“[W]e have held the
Department’s failure to strictly comply with other statutory provisions did not
deprive the Department of authority to suspend driving privileges when the
statutory provision was not a basic and mandatory provision requiring
compliance.”); Aamodt v. N.D. Dep’t of Transp., 

, 

 (“The Department’s authority to suspend a person’s license is given by
statute and is dependent upon the terms of the statute. The Department must
meet the basic and mandatory provisions of the statute to have authority to
suspend a person’s driving privileges.”). Today we clarify what we mean by
“basic and mandatory provisions.” In doing so, we do not decide whether past
cases meet the standard articulated today. Still, we discuss several cases to show
how the case law has developed and how the language and analysis in those
cases support the standard articulated today.

                                               B

[¶11] This Court has held “N.D.C.C. § 39-20-04.1 provides the Department with
authority to suspend a license.” Kirkpatrick, 

, ¶ 13; see also
Christiansen, 

 (stating “N.D.C.C. § 39-20-03.1 provides
procedures for law enforcement to follow and N.D.C.C. § 39-20-04.1 provides the
Department’s authority to sanction a driver”). Section 39-20-04.1 applies when
the driver submits to a chemical test. Thus, when the driver is tested, the
Department must meet the mandatory provisions of section 39-20-04.1 to have
authority to suspend the person’s driving privileges.1

[¶12] Unlike N.D.C.C. § 39-20-04.1, N.D.C.C. § 39-20-03.1 does not identify
conditions that must be met for the Department to have authority to suspend



1 Section 39-20-04, N.D.C.C, provides the Department’s authority to revoke an individual’s

driving privileges for refusal to submit to testing. Whitecalfe v. N.D. Dep't of Transp., 

, 

 (stating if “the basic and mandatory provisions of [section 39-20-04]
have not been met, the Department lacks authority to revoke an individual’s driving privileges”
for refusal to submit to testing).



                                               4
driving privileges. Rather, section 39-20-03.1 “lists procedures law enforcement
must follow after a person has tested over the legal limit for driving under the
influence.” Christiansen, 

. Although section 39-20-03.1 does not
provide the Department’s authority to suspend a license, this Court has
recognized the relationship between section 39-20-03.1 and section 39-20-04.1.
We have explained “[t]he requirements in N.D.C.C. § 39-20-04.1(1) mirror some
requirements of N.D.C.C. § 39-20-03.1(4).” Id. ¶ 16.

[¶13] Whether a statutory provision in N.D.C.C. ch. 39-20 is basic and
mandatory depends on whether the provision mirrors a provision of the statute
providing the Department authority to suspend or revoke a person’s driving
privileges. Thus, if requirements in N.D.C.C. § 39-20-03.1(4) mirror requirements
of N.D.C.C. § 39-20-04.1(1), those requirements are basic and mandatory and
must be met for the Department to have authority to suspend a person’s driving
privileges. Correspondingly, requirements in section 39-20-03.1(4) that do not
mirror requirements of section 39-20-04.1(1) need not be met for the Department
to have authority to suspend a person’s driving privileges. A statutory provision
mirrors a requirement of section 39-20-04.1(1) if the provision provides
information important to the Department in determining its authority to
suspend a license. Thus, provisions are not basic and mandatory when they “are
not important in determining whether a driver’s license can be suspended, and
they are not considered by the Department when making its determination.”
Aamodt, 

; see also Christiansen, 

 (“The ‘basic and
mandatory’ rationale has been used to excuse strict compliance with statutory
provisions not essential to the Department when making its license suspension
decision.”).

                                        C

[¶14] Section 39-20-04.1(1), N.D.C.C., provides, in relevant part:

      After the receipt of the certified report of a law enforcement officer
      and if no written request for hearing has been received from the
      arrested person under section 39-20-05, or if that hearing is
      requested and the findings, conclusion, and decision from the
      hearing confirm that the law enforcement officer had reasonable


                                        5
      grounds to arrest the person and test results show that the arrested
      person was driving or in physical control of a vehicle while having
      an alcohol concentration of at least eight one-hundredths of one
      percent by weight or, with respect to a person under twenty-one
      years of age, an alcohol concentration of at least two one-hundredths
      of one percent by weight at the time of the performance of a test
      within two hours after driving or being in physical control of a
      motor vehicle, the director shall suspend the person’s driving
      privileges[.]

[¶15] The word “after” conditions the Department’s authority to suspend a
person’s driving privileges on certain circumstances being met. See Weber v. N.
Loup River Pub. Power and Irrigation Dist., 

, 

(noting the term “after” evidences a provision is conditional); Dolan v. Kemper
Indep. Ins., 

, 

 (2018) (stating “after” creates
a condition similar to “when,” “as soon as,” and “until”); see also The American
Heritage Dictionary 30 (5th ed. 2018) (defining “after” as “[s]ubsequent in time
to”); Merriam-Webster’s Dictionary 23 (11th ed. 2005) (defining “after” as
“subsequently to the time when”); New Oxford American Dictionary 28 (3d ed.
2010) (defining “after” as “during the period of time following”). When a driver
who consented to a test requests a hearing, the required circumstances include
(1) the Department’s “receipt of the certified report of a law enforcement officer,”
(2) the Department affording the driver a hearing, (3) a decision confirming “the
law enforcement officer had reasonable grounds to arrest the person,” and (4) a
decision confirming the “test results show that the arrested person was driving
or in physical control of a vehicle” while the person’s alcohol concentration was
over the legal limit. N.D.C.C. § 39-20-04.1(1); see Christiansen, 

(“Before the Department can suspend a person’s driving privileges when he or
she has requested an administrative hearing, the Department must receive the
certified report from law enforcement, confirm law enforcement had reasonable
grounds to arrest the person and confirm test results show that person’s alcohol
concentration was over the legal limit within two hours of driving or being in
control of a vehicle.”).

                                         1



                                         6
[¶16] The first condition in N.D.C.C. § 39-20-04.1(1) that must be met for the
Department to have authority to suspend a person’s driving privileges is that the
Department receive “the certified report of a law enforcement officer.” Section
39-20-03.1(4) mirrors this condition by mandating the officer “forward to the
director a certified written report in the form required by the director.” Without
the officer forwarding to the director the certified report, the Department cannot
receive the certified report. Thus, “it is important to the Department that the
provision be followed” or a “predicate” to the Department’s authority to
suspend the person’s driving privileges has not been met. Aamodt, 

. Christiansen, 

, and Schwind v. Director, North Dakota Department
of Transportation, 

 (N.D. 1990), illustrate the distinction between
a “predicate” to the Department’s authority to suspend a person’s driving
privileges and a statutory provision that does not affect the Department’s
authority to suspend a person’s driving privileges if not met.

[¶17] In Christiansen, the officer did not forward the certified report to the
Department within five days as required by N.D.C.C. § 39-20-03.1(4). 

. Comparing the five-day requirement in section 39-20-03.1(4) to N.D.C.C.
§ 39-20-04.1(1), this Court explained that section 39-20-04.1(1) “does not control
or even mention the timing of law enforcement forwarding the report, nor the
timing of the Department receiving the report (other than before suspension of
driving privileges).” Id. ¶ 18. Because the five-day requirement in section 39-20-
03.1(4) did not mirror section 39-20-04.1(1), we held “the five-day directive to
law enforcement in N.D.C.C. § 39-20-03.1(4) does not affect the Department’s
authority to suspend driving privileges under N.D.C.C. § 39-20-04.1.” Id. In other
words, whether the five-day requirement is met is “not important in determining
whether a driver’s license can be suspended, and [it is] not considered by the
Department when making its determination.” Aamodt, 

; cf.
Schock, 

, ¶ 37 (“The statutory language in N.D.C.C. § 39-20-05(5) is
not basic and mandatory, because the hearing officer’s action in mailing the
decision three days after the administrative hearing did not affect whether there
were reasonable grounds to believe Schock drove or was in actual physical
control of a vehicle while under the influence of alcohol, whether the police
officer properly tested Schock, or whether Schock’s blood-alcohol level exceeded


                                        7
the legal limit.”); Erickson v. Dir., N.D. Dep't of Transp., 

 (N.D.
1993) (holding failure to forward a copy of analytical report within five days as
required by N.D.C.C. § 39-20-03.2(3) did not deprive the Department of
authority).

[¶18] In Schwind, the officer forwarded the certified report to the Department
but not the operator’s license. 

. Although N.D.C.C. § 39-20-
03.1(2) “requires the officer to forward the operator’s license,” we held the
officer’s failure to do so did not deprive the Department of authority to suspend
the driver’s driving privileges. Id. at 150. The requirement in section 39-20-03.1(2)
that the officer forward the operator’s license does not mirror any predicate to
the Department’s authority in N.D.C.C. § 39-20-04.1(1); in other words, section
39-20-04.1 does not require the Department receive the operator’s license, and
whether the officer forwarded to the Department the operator’s license is
unimportant to the Department’s decision whether to suspend the operator’s
driving privileges. Thus, the directive that the officer forward to the Department
the operator’s license is not a basic and mandatory provision.

                                         2

[¶19] The second condition in N.D.C.C. § 39-20-04.1(1) that must be met for the
Department to have authority to suspend a person’s driving privileges is that the
Department afford the driver a hearing if requested under N.D.C.C. § 39-20-05.
Paralleling section 39-20-04.1(1), section 39-20-05(1) provides:

      Before issuing an order of suspension, revocation, or denial under
      section 39-20-04 or 39-20-04.1, the director shall afford that person
      an opportunity for a hearing if the person mails or communicates by
      other means authorized by the director a request for the hearing to
      the director within ten days after the date of issuance of the
      temporary operator’s permit.

[¶20] Multiple provisions of N.D.C.C. ch. 39-20 require the officer to issue to the
driver a temporary operator’s permit. See N.D.C.C. §§ 39-20-03.1(1), 39-20-
03.2(1), 39-20-04(1). The requirement the officer issue to the driver a temporary
operator’s permit is directly connected to the requirement in N.D.C.C. § 39-20-
04.1(1) that the Department afford the driver a hearing.

                                         8
[¶21] “The temporary operator’s permit serves as the director’s official
notification to the person of the director’s intent to revoke, suspend, or deny
driving privileges in this state.” N.D.C.C. § 39-20-03.1(1); cf. N.D.C.C. § 39-20-
04(1) (“The temporary operator’s permit serves as the director’s official
notification to the person of the director’s intent to revoke driving privileges in
this state and of the hearing procedures under this chapter.”). Thus, absent the
officer issuing to the driver a temporary operator’s permit, the driver lacks notice
of the right to request a hearing and has not been afforded the opportunity for a
hearing, depriving the Department of authority to suspend the driver’s driving
privileges. N.D. Admin. Code § 37-03-03-12 (“The temporary operator’s permit
issued by the law enforcement officer, containing a notice that motor vehicle
operating privileges will be revoked or suspended and of an opportunity for a
hearing, shall constitute the written notice required by North Dakota Century
Code section 39-20-05 from the director.”). That is why we held in Ike v. Director,
North Dakota Department of Transportation, 

, 

, that
“the issuance of a temporary operator’s permit to a driver is a basic and
mandatory requirement of N.D.C.C. § 39-20-03.1.” See also Haynes, 

 (“The issuance of the temporary permit is vital to revocation proceedings,
and therefore the Department does not have authority to revoke a person’s
driving privileges if the person is not issued a temporary operator’s permit.”).
But who issues the temporary operator’s permit is not a basic and mandatory
requirement of section 39-20-03.1 because who issues the permit has no bearing
on the driver’s opportunity to request a hearing. Ike, at ¶ 10. When the officer
issues the temporary operator’s permit is also not a basic and mandatory
provision because the date of issuance does not impact the driver’s opportunity
to request a hearing. See N.D.C.C. § 39-20-05(1) (request for a hearing must be
made within ten days after the date of issuance of the temporary operator’s
permit); see also Haynes, at ¶ 10 (holding delay in issuing temporary operator’s
permit to nonresident motorist did not impact Department’s authority to revoke
motorist’s driving privileges); Samdahl v. N.D. Dep’t of Transp. Dir., 

 (N.D. 1994) (holding unexplained delay in issuing notice of intent to
suspend driving privileges did not deprive the Department of authority).

                                         3


                                         9
[¶22] If the driver requests a hearing and the hearing is held, N.D.C.C. § 39-20-
04.1(1) requires the “findings, conclusion, and decision from the hearing confirm
that the law enforcement officer had reasonable grounds to arrest the person[.]”
Paralleling this requirement, N.D.C.C. § 39-20-05(2) provides the scope of the
hearing may only cover four issues, one being “whether the arresting officer had
reasonable grounds to believe the individual had been driving or was in actual
physical control of a vehicle” while having an alcohol concentration above the
applicable legal limit. Thus, the Department’s authority to suspend a person’s
driving privileges is predicated on the officer having had reasonable grounds to
arrest the person.

[¶23] Section 39-20-03.1(4), N.D.C.C., requires the certified report “show that the
officer had reasonable grounds” to arrest the driver for driving or being in actual
physical control of a motor vehicle while under the influence. This information
is “important in determining whether a driver’s license can be suspended, and
[is] considered by the Department when making its determination.” Aamodt,

. Thus, it is a basic and mandatory provision. Id. ¶ 1 (holding
“the provision in N.D.C.C. § 39-20-03.1(3) requiring an officer to issue a certified
written report showing reasonable grounds to believe the person was in actual
physical control of a motor vehicle while under the influence of alcohol is a basic
and mandatory provision”).

                                         4

[¶24] Under N.D.C.C. § 39-20-04.1(1), the decision after a hearing must confirm
the “test results show that the arrested person was driving or in physical control
of a vehicle while having an alcohol concentration” above the legal limit.
Paralleling this requirement, N.D.C.C. § 39-20-05(2) provides the scope of the
hearing includes “whether the individual was tested in accordance with section
39-20-01 and, if applicable, section 39-20-02,” and “whether the test results show
the individual had an alcohol concentration” above the legal limit. The
Department lacks authority to suspend an individual’s driving privileges if the
individual was not tested in accordance with the law and the test results do not
show the individual had an alcohol concentration above the legal limit.



                                        10
[¶25] Section 39-20-03.1(4), N.D.C.C., requires the officer forward to the
Department “a certified copy of the operational checklist and test records of a
breath test and a copy of the certified copy of the analytical report for a blood or
urine test for all tests administered at the direction of the officer.” The
requirement the officer forward certain documents to the Department is
inextricably intertwined with the requirement the Department find the test was
administered in accordance with the law and the test results show the individual
had an alcohol concentration above the legal limit. The documents are
“considered by the Department when making its determination” and are
critically important to the Department’s determination “whether a driver’s
license can be suspended[.]” Aamodt, 

. Thus, that the officer
forward copies of certain documents to the Department is a basic and mandatory
provision.

[¶26] Multiple cases hold that portions of N.D.C.C. § 39-20-03.1(4)’s requirement
the officer forward to the Department “a certified copy of the operational
checklist and test records of a breath test and a copy of the certified copy of the
analytical report for a blood or urine test for all tests administered at the
direction of the officer” is a basic and mandatory provision. Yet those cases also
demonstrate strict compliance with the provision is only required when the
information is necessary for the Department to make its license suspension
decision. Like other provisions in section 39-20-03.1(4), provisions of the last
sentence in section 39-20-03.1(4) only impact the Department’s authority to
sanction a driver when they mirror or implement provisions in N.D.C.C. § 39-
20-04.1 that impact the Department’s authority to sanction a driver. Several cases
have addressed which aspects of this last sentence in section 39-20-03.1(4) are
basic and mandatory.

[¶27] The last sentence in N.D.C.C. § 39-20-03.1(4) has two requirements based
on the test or tests administered. First, the sentence requires the officer forward
to the Department “a certified copy of the operational checklist and test records
of a breath test[.]” N.D.C.C. § 39-20-03.1(4) (emphasis added). Second, the
sentence requires the officer forward to the Department “a copy of the certified
copy of the analytical report for a blood or urine test[.]” Id. (emphasis added). The
test or tests administered at the officer’s direction determines what the officer

                                         11
must forward to the Department. See Wingerter v. N.D. Dep’t of Transp., 

 (N.D. 1995) (“Section 39-20-03.1(3) distinguishes between breath
tests on the one hand, and blood . . . and urine tests on the other.”).

[¶28] In Bosch v. Moore, the driver was arrested for driving under the influence,
and the officer conducted a breath test and a urine test. 

(N.D. 1994). The officer discarded the breath test results because the results were
invalid due to a deviation of more than 0.02%. 

 The officer forwarded the urine
test to the Department. 

 This Court held N.D.C.C. § 39-20-03.1(4) required the
officer to provide the Department with “all tests” for the Department to retain
its authority. Id. at 413. We emphasized that section 39-20-03.1(4)’s “command
that all tests be forwarded to [the Department] is basic and mandatory. It
precludes the officer’s exercise of choice and requires the transmittal of ‘all
tests.’” Id. The requirement that “all tests” be forwarded to the Department is
basic and mandatory because the Department should consider “all tests” when
making its decision and determining its authority to suspend a driver’s license.
See N.D.C.C. § 39-20-04.1(1).

[¶29] In Koenig, the officer conducted two breath tests. 

. The
driver put chewing tobacco in his mouth between the first and second breath
samples of the first test, which made it impossible to obtain an accurate reading.
Id. ¶ 3. Moreover, because of a printer malfunction, the officer could not print a
record of the first test. Id. Therefore, the officer could not forward the results of
the first test to the Department. Id. The officer conducted a second breath test
and forwarded the results of that test to the Department. Id. This Court noted the
officer “did not discard any test results or otherwise make a judgment on the
validity of any tests administered” to the driver. Id. ¶ 14. Rather, the officer
forwarded “[e]very available record of test results” to the Department. Id. Thus,
the officer complied with N.D.C.C. § 39-20-03.1(4) and the Department had
authority to suspend the driver’s driving privileges. See id. ¶ 16. In Koenig, the
officer complied with the statute and did not deprive the Department of any
available information that could help it make its determination.

[¶30] Kirkpatrick concerned both breath tests and a blood test. 

, ¶¶ 2-
3. “[T]he officer submitted a certified report to the Department, showing the


                                         12
officer had reasonable grounds to believe Kirkpatrick was driving under the
influence, showing Kirkpatrick was legally arrested, documenting that the
officer performed two breath tests on Kirkpatrick, and providing the breath test
results.” Id. ¶ 3. However, the officer did not forward the analytical blood report
to the Department. Id. ¶ 4. We concluded the officer’s failure to forward to the
Department the result of a blood test taken at the officer’s direction deprived the
Department of authority to suspend the driver’s license. Id. ¶ 21; cf. Wingerter,

 (holding Department had authority when officer forwarded
certified copy of analytical report for blood). That is because N.D.C.C. § 39-20-
03.1(4)’s directive the officer forward to the Department the analytical report for
a blood test provides information “essential to the Department when making its
license suspension decision.” Christiansen, 

.

[¶31] But in Keller v. North Dakota Department of Transportation, we held an
officer’s failure to forward to the Department a drug analytical report did not
deprive the Department of authority to suspend the driver’s license. 

, 

. In doing so, we emphasized that “N.D.C.C. § 39-20-04.1
only allows for an administrative sanction by the director based on test results
for alcohol concentration, with no reference made to a drug test.” Id. ¶ 9. We
noted the limited issues the administrative hearing officer considers under
N.D.C.C. § 39-20-05(2) include whether “the test results indicate the driver’s
alcohol concentration was at least eight one-hundredths of one percent by
weight.” Id. Because the Department’s authority to suspend a driver’s license is
based on alcohol concentration, and “[o]nly alcohol tests show alcohol
concentration,” “there would be no need for the director to receive the results of
the drug test[.]” Id. ¶ 12. We concluded, “it would make no sense to require the
forwarding of drug tests to the director, when the director would have no
authority to sanction the driver based on the results of the test under N.D.C.C.
§ 39-20-04.1.” Id. In the language of Aamodt, drug test results “are not important
in determining whether a driver’s license can be suspended, and they are not
considered by the Department when making its determination.” 

. Thus, even if “all tests” in N.D.C.C. § 39-20-03.1(4) includes drug tests,
forwarding drug tests would not be a basic and mandatory provision.




                                        13
[¶32] In Maher v. North Dakota Department of Transportation, we held an officer’s
failure to forward an empty blood collection kit did not divest the Department
of authority to suspend the driver’s license. 

 (N.D. 1995). We
noted N.D.C.C. § 39-20-03.1(4) “requires the officer to ‘forward to the director . . .
a copy of the certified copy of the analytical report for a blood [test],’” that “no
blood had entered the first vacutainer tube[,]” and that “[i]t is impossible to
obtain the analytical report of a blood test from a vacutainer tube without any
blood in it.” Id. This Court’s holding acknowledged the empty blood collection
kit did not provide information “important in determining whether a driver’s
license can be suspended” and would “not [be] considered by the Department
when making its determination.” Aamodt, 

.

[¶33] In Larson v. Moore, however, this Court held the Department did not have
authority to suspend the driver’s license when the officer discarded a blood
sample taken from the driver. 

, 

. We noted
N.D.C.C. § 39-20-03.1(3) “requires an analytical report be made and forwarded
for each and every test administered.” Id. ¶ 9. “In this case, two samples were
taken.” Id. ¶ 10. “[T]he taking of the blood sample is part of the test process[,] . . .
and there [was] no dispute some blood was collected during the first attempt.”
Id. Because the officer discarded the first sample, “no analytical report was
made.” Id. Thus, unlike in Maher, the blood sample could provide important
information “in determining whether a driver’s license can be suspended” and
would be “considered by the Department when making its determination.”
Aamodt, 

. Therefore, “[t]he officer’s failure to submit the first
sample for testing to obtain an analytical report as required by N.D.C.C. § 39-20-
03.1(3) deprived the Department of authority to suspend Larson’s driver’s
license.” Larson, at ¶ 10.

                                           D

[¶34] Section 39-20-03.1(4), N.D.C.C., requires the officer forward to the
Department “a certified copy of the operational checklist and test records of a
breath test[.]” It is undisputed the Department did not receive a “certified” copy
of Meier’s test record and checklist. The legal issue is whether the requirement



                                          14
the test record and checklist be certified is a basic and mandatory requirement
that impacts the Department’s authority under N.D.C.C. § 39-20-04.1.

[¶35] The requirement officers forward to the Department a copy of the test
record and checklist of every breath test is inextricably intertwined with the
requirement that the Department find the test was administered in accordance
with the law and that the test results show the individual had an alcohol
concentration above the legal limit. The information in those documents is
“considered by the Department when making its determination” and is
important to the Department’s determination “whether a driver’s license can be
suspended[.]” Aamodt, 

. But the requirement the document be
certified does not parallel any requirement in N.D.C.C. § 39-20-04.1. Rather, the
certification requirement is for evidentiary purposes, which can be accomplished
through other means.

[¶36] Section 39-20-04.1(1), N.D.C.C., requires the Department receive “the
certified report of a law enforcement officer” for it to have authority to suspend
a driver’s driving privileges. Section 39-20-04.1(1) does not require the
Department receive a certified copy of the test record and checklist for it to have
authority to suspend a driver’s driving privileges. The language in N.D.C.C.
§ 39-20-03.1(4) makes it clear the report and the test record and checklist are
separate and distinct documents. Section 39-20-03.1(4) provides the officer must
forward the report to the Department “within five days of the issuance of the
temporary operator’s permit[.]” No such requirement exists regarding the test
record and checklist. Moreover, section 39-20-03.1(4) provides the officer must
forward to the Department the test record and checklist “[i]n addition to” the
report. The phrase “in addition to” demonstrates the report and the test record
and checklist are separate and distinct documents. See The American Heritage
Dictionary 19 (5th ed. 2018) (defining “in addition to” as “[o]ver and above;
besides”); Merriam-Webster’s Dictionary 14 (11th ed. 2005) (defining “in addition
to” as “combined or associated with” and “besides”); New Oxford American
Dictionary 18 (3d ed. 2010) (defining “in addition” “as an extra person, thing, or
circumstance”); Heritage Farms, Inc. v. Markel Ins., 

, 

, 

 (explaining “in addition to” means “besides”); cf. Tergesen v.
Nelson Homes, Inc., 

, 

 (“The word ‘and’ is

                                        15
‘conjunctive in nature and ordinarily means in addition to.’” (quoting Gadeco,
LLC v. Indus. Comm’n of State, 

, 

)). Section 39-20-
04.1(1) only requires the Department receive “the certified report” for it to have
authority to suspend a driver’s driving privileges, not the certified test record
and checklist. The requirement in N.D.C.C. § 39-20-03.1(4) that the officer
forward to the Department “a certified copy” of the test record and checklist does
not mirror any requirement in N.D.C.C. § 39-20-04.1(1). Thus, the requirement is
not a basic and mandatory provision that must be followed for the Department
to have authority to suspend a driver’s driving privileges.

[¶37] It is also the substance of the test record and checklist, not whether it is
certified, that the Department considers when determining whether it has
authority to suspend a driver’s driving privileges. If the test record and checklist
is admissible, the Department may consider it when making its determination.

[¶38] “Section 39-20-07, N.D.C.C., governs the admission of a chemical test
result and allows the use of certified documents to establish the evidentiary
foundation for the result.” Ell v. Dir., N.D. Dep't of Transp., 

,

. Section 39-20-07(5) eases the burden in laying the evidentiary
foundation for a chemical test result. Id. ¶ 18. Section 39-20-07(5) “governs the
admissibility of Intoxilyzer test results.” Buchholz v. N.D. Dep't of Transp., 

, 

. “One of these foundational elements requires the
breath test to have been ‘fairly administered.’” State v. Blaskowski, 

, 

. “To facilitate compliance with N.D.C.C. § 39-20-07 and the
foundational element requiring a test be fairly administered, the state
toxicologist has established approved methods for administering chemical
breath tests.” Id. ¶ 6. A certified copy of the test record and checklist is a
foundational element for use of the “evidentiary shortcut” provided by section
39-20-07. Id. ¶ 8. Although section 39-20-07 provides a “statutory shortcut,” it
does not prevent the Department from showing fair administration of the test
through other evidence. State v. Vannett, 

, 

.

[¶39] “The admissibility of evidence at an adjudicative hearing before an
administrative agency is governed by the North Dakota Rules of Evidence.”
Ouradnik v. Henke, 

, ¶ 19, 

 (quoting May v.


                                        16
Sprynczynatyk, 

, 

). “Generally, before
documentary evidence is admissible it must be authenticated.” Frost v. N.D.
Dep't of Transp., 

 (N.D. 1992). “Rule 901, N.D.R.Ev., provides for
methods of authentication of evidence.” State v. Cook, 

, 

. Under Rule 901(a), “[a]ll that authentication requires is that the
party offering the evidence show that the document is what he claims it to be[.]”
R & D Amusement Corp. v. Christianson, 

 (N.D. 1986). A party
can authenticate or identify an item of evidence through multiple means. See
N.D.R.Ev. 901(b). Rule 901(b) “places no limitations upon the number of methods
of proving authentication.” Farmer’s Union Oil Co. of Dickinson v. Wood, 

 (N.D. 1980); see also State v. Gackle, 

, 

 (“Under N.D.R.Ev. 901, evidence may be authenticated by the
testimony of a witness with knowledge.”); State v. Haugen, 

(N.D. 1986) (“It is uniformly recognized that a document may be authenticated
by circumstantial evidence, such as the events preceding, surrounding, and
following the transmission of a writing.”). Thus, if the test record and checklist
does not satisfy the “statutory shortcut” because it is not certified, it is still
admissible if the Department “produce[s] evidence sufficient to support a
finding” that it is what the Department claims it is. N.D.R.Ev. 901(a); see also
Ouradnik, at ¶ 25 (“The arresting officer’s testimony provided sufficient
foundation and authentication to admit the Intoxilyzer Test Record and
Checklist without the necessity of certification by the NDDOT.”); State v. Schwalk,

 (N.D. 1988) (concluding absent written certification the state
toxicologist’s directives for sample collection have been followed, the State must
establish fair administration of the test by other evidence).

[¶40] Section 39-20-04.1, N.D.C.C., does not require the Department receive a
certified copy of a breath test result and checklist to have authority to suspend a
person’s driving privileges. Thus, the requirement in N.D.C.C. § 39-20-03.1(4)
that the officer forward to the Department “a certified copy” of the test record
and checklist is not a basic and mandatory provision that must be followed for
the Department to have authority to suspend a driver’s driving privileges. The
certification requirement is for evidentiary purposes, which can be accomplished
through other means.


                                        17
                                        E

[¶41] In conclusion, N.D.C.C. § 39-20-04.1 provides the Department with
authority to suspend a driver’s driving privileges. Section 39-20-03.1(4),
N.D.C.C., lists procedures an officer must follow when a person has tested over
the legal limit for driving under the influence. An officer’s non-compliance with
a provision of section 39-20-03.1(4) does not impact the Department’s authority
to suspend a driver’s driving privileges unless the provision is basic and
mandatory. To be basic and mandatory, the provision must mirror a provision
of section 39-20-04.1(1). A provision of section 39-20-03.1(4) mirrors a provision
of section 39-20-04.1(1) when the officer’s compliance with the provision
provides to the Department information important to the Department in
determining its authority to suspend a license. The requirement in section 39-20-
03.1(4) that the test record and checklist be “certified” is not a basic and
mandatory provision impacting the Department’s authority to suspend a
driver’s driving privileges.

                                       IV

[¶42] We reverse the district court’s judgment and reinstate the Department’s
decision suspending Meiers’s driving privileges.

[¶43] Jon J. Jensen, C.J.
      Daniel J. Crothers
      Lisa Fair McEvers
      Jerod E. Tufte
      Douglas A. Bahr




                                       18