Attorney General responds to state audit which concludes that 34 DUI tests were invalid

BISMARCK, N.D. (KVRR) – The North Dakota State Auditor says an audit of Attorney General Wayne Stenehjem’s State Crime Laboratory Division found that 34 DUI tests are invalid and can be dismissed in a court of law.

Auditor Joshua Gallion says the audit involves 8,925 DUI tests during a two-year period which ended June 30, 2020.  Gallion says if breath alcohol tests for a DUI are performed using unapproved or expired gas standard canisters, the results are considered invalid.  Tests were conducted with gas standard canisters that had been expired for up to 153 days.

Gallion says the attorney general’s State Crime Laboratory Division is authorized to approve devices, develop a testing procedure, and certify qualified operators of breath alcohol testing devices.  He says canisters in the devices serve as a “check” to see if the devices are calibrated and functioning correctly at the time of breath testing.

Stenehjem replied to the audit with the following statement:

 In his haste to issue a press release, the Auditor missed critical facts, though we tried more than once to explain them to him. In our response to his audit, we adamantly denied his finding:

• We have had in place for many years a process to direct the field inspectors to ensure the gas cylinders are approved and replaced prior to the expiration dates. The Auditor was unable to provide any suggestions relating to acceptable measures that could be taken to satisfy part B of the recommendation.

The Crime Lab does not perform DUI tests and neither does any other employee of this office. The DUI tests are conducted by county and city law enforcement officers as well as the Highway Patrol. The Crime Lab provides Intoxilyzer devices to local law enforcement and provides training without charge. Every one of the approximately 1,000+ certified officers is trained on how to replace the gas cylinder, that every cylinder has an expiration date, and that tests run on an expired cylinder are invalid. Gas cylinders are replaced by the Crime Lab at no cost to the agency.

There is no excuse for any law enforcement agency to be using an expired gas cylinder, or for officers to run tests as long as 153 days after the gas cylinder expired, ignoring all the training they were given.

This spring during our annual inspections we notified 21 agencies that their gas cylinders would be expiring in November of this year and would need replacing.

Although the Auditor tries to take the credit in his press release, in fact months before the audit was issued, we requested, and the 2021 Legislative Assembly approved, funding to begin replacement of the Intoxilyzer 800 (which requires the officer manually to check that the gas cylinder has not expired) with the Intoxilyzer 900 (which automatically tracks the expiration date and will not permit tests to be run after that date), so these mistakes cannot be repeated.

At the conclusion of our audit, we met with the Auditor to attempt to explain the critical facts which he missed in his audit. Other than this inaccurate assessment, the Auditor found no problems with the operations of the Office of Attorney General.