§291E-36 Documents required to be submitted for administrative review; sworn statements. (a) Whenever a respondent has been arrested for a violation of section 291E-61 or 291E-61.5 and submits to a test that establishes: the respondent's alcohol concentration was .08 or more; the presence, in the respondent's blood or urine, of any drug that is capable of impairing the respondent's ability to operate a vehicle in a careful and prudent manner; or whenever a respondent has been involved in a collision resulting in injury or death and a blood or urine test performed pursuant to section 291E-21 establishes that the respondent's alcohol concentration was .08 or more or establishes the presence in the respondent's blood or urine of any drug that is capable of impairing the respondent's ability to operate a vehicle in a careful and prudent manner, the following shall be forwarded immediately to the director:
(1) A copy of the arrest report or the report of the law enforcement officer who issued the notice of administrative revocation to the person involved in a collision resulting in injury or death and the sworn statement of the arresting law enforcement officer or the officer who issued the notice of administrative revocation, stating facts that establish that:
(A) There was reasonable suspicion to stop the vehicle, the vehicle was stopped at an intoxicant control roadblock established and operated in compliance with sections 291E-19 and 291E-20, or the respondent was tested pursuant to section 291E-21;
(B) There was probable cause to believe that the respondent had been operating the vehicle while under the influence of an intoxicant; and
(C) The respondent agreed to be tested or the person was tested pursuant to section 291E-21;
(2) In a case involving an alcohol related offense, the sworn statement of the person responsible for maintenance of the testing equipment, stating facts that establish that, pursuant to section 321-161 and rules adopted thereunder:
(A) The equipment used to conduct the test was approved for use as an alcohol testing device in this State;
(B) The person had been trained and at the time the test was conducted was certified and capable of maintaining the testing equipment; and
(C) The testing equipment used had been properly maintained and was in good working condition when the test was conducted;
(3) In a case involving an alcohol related offense, the sworn statement of the person who conducted the test, stating facts that establish that, pursuant to section 321-161 and rules adopted thereunder:
(A) The person was trained and at the time the test was conducted was certified and capable of operating the testing equipment;
(B) The person followed the procedures established for conducting the test;
(C) The equipment used to conduct the test functioned in accordance with operating procedures and indicated that the respondent's alcohol concentration was at, or above, the prohibited level; and
(D) The person whose breath or blood was tested is the respondent;
(4) In a case involving a drug related offense, the sworn statement of the person responsible for maintenance of the testing equipment, stating facts that establish that, pursuant to section 321-161 and rules adopted thereunder:
(A) The equipment used to conduct the test was approved for use in drug testing;
(B) The person conducting the test had been trained and, at the time of the test, was certified and capable of maintaining the testing equipment; and
(C) The testing equipment used had been properly maintained and was in good working condition when the test was conducted;
(5) In a case involving a drug related offense, the sworn statement of the person who conducted the test, stating facts that establish that, pursuant to section 321-161 and rules adopted thereunder:
(A) At the time the test was conducted, the person was trained and capable of operating the testing equipment;
(B) The person followed the procedures established for conducting the test;
(C) The equipment used to conduct the test functioned in accordance with operating procedures and indicated the presence of one or more drugs or their metabolites in the respondent's blood or urine; and
(D) The person whose blood or urine was tested is the respondent;
(6) A copy of the notice of administrative revocation issued by the law enforcement officer to the respondent;
(7) Any license, and motor vehicle registration and number plates, if applicable, taken into possession by the law enforcement officer; and
(8) A listing of any prior alcohol or drug enforcement contacts involving the respondent.
(b) Whenever a respondent has been arrested for a violation of section 291E-61 or 291E-61.5 and refuses to submit to a test to determine alcohol concentration or drug content in the blood or urine, the following shall be forwarded immediately to the director:
(1) A copy of the arrest report and the sworn statement of the arresting law enforcement officer, stating facts that establish that:
(A) There was reasonable suspicion to stop the vehicle or the vehicle was stopped at an intoxicant control roadblock established and operated in compliance with sections 291E-19 and 291E-20;
(B) There was probable cause to believe that the respondent had been operating the vehicle while under the influence of an intoxicant;
(C) The respondent was informed of:
(i) The sanctions of section 291E-41;
(ii) The possibility that criminal charges may be filed; and
(iii) The probable consequences of refusing to be tested for alcohol concentration or drug content in the blood or urine; and
(D) The respondent refused to be tested;
(2) A copy of the notice of administrative revocation issued to the respondent;
(3) Any driver's license, and motor vehicle registration and number plates if applicable, taken into possession; and
(4) A listing of all alcohol and drug enforcement contacts involving the respondent. [L 2000, c 189, pt of §23; am L 2001, c 157, §17; am L 2002, c 113, §3; am L 2004, c 90, §10; am L 2006, c 64, §5]
Case Notes
Decisions under prior law (§286-257).
Statute requires sworn statements, not statements given under oath or even notarized statements. Offender-Based Transaction Statistics/Computerized Criminal History Arrest Report, along with arresting officer's statement, fulfilled requirements of statute; statute does not require the complete police report. 75 H. 1, 856 P.2d 1207.
Standard form submitted by intoxilyzer supervisor states sufficient facts to comply with requirements of subsection (a)(2) and the instrument is presumed to be properly functioning for thirty days after its successful testing for accuracy; hearing officer and district court were correct in concluding that reasonable suspicion existed for police officer to stop appellant. 75 H. 271, 859 P.2d 917.
Based on §§286-258, 286-259, and this section, upon petitioner's objection, the hearing officer must exclude from the record only (a) all unsworn statements (except the arrest report) of law enforcement officials who do not appear to testify, and (b) all other evidence that is both irrelevant and prejudicial. 91 H. 212 (App.), 982 P.2d 346.
Subsection (b)(1)(C) does not require that all possible and incidental effects of a refusal to consent to a chemical test be explained to an arrestee. 91 H. 212 (App.), 982 P.2d 346.
Where intoxilyzer operator's statements that breath test was administered in compliance with operator's training and the procedures established for conducting the test under subsection (a)(2)(B) and that intoxilyzer indicated no errors or malfunctions during the test, statement verified that equipment functioned in accordance with operating procedures mandated by subsection (a)(3)(C) and set forth sufficient facts to establish that the requirements of subsection (a)(3)(B) and (C) had been satisfied. 93 H. 133 (App.), 997 P.2d 59.