Opinion
No. C1-97-419.
Filed October 14, 1997.
Appeal from the District Court, Dakota County, File No. C9-96-9156.
Jeffrey R. Besikof, (for appellant).
Hubert H. Humphrey, III, Attorney General, Steven H. Alpert, Assistant Attorney General, (for respondent).
This opinion will be unpublished and may not be cited except as provided by Minn. Stat. sec. 480A.08, subd. 3 (1996).
UNPUBLISHED OPINION
Donald Edward Bauer challenges the revocation of his driver's license, arguing the district court erred in finding the Intoxilyzer test results reliable. We affirm.
FACTS
On August 4, 1996, a Dakota County sheriff stopped Bauer for erratic driving and subsequently arrested him for driving while under the influence of alcohol. Bauer submitted to an Intoxilyzer 5000 breath test conducted by a certified Intoxilyzer operator. The Intoxilyzer registered results of .109 for Bauer's first breath sample and .104 for his second breath sample.
The Commissioner of Public Safety revoked Bauer's driver's license and the district court sustained the revocation. Bauer appeals.
DECISION
Bauer argues the district court erred in finding that the Intoxilyzer 5000 accurately measured his alcohol concentration at .10 or higher. He claims the district court erroneously rejected the testimony of his expert witness, who testified that the Intoxilyzer was producing inaccurate results when Bauer submitted to a breath test.
We will not disturb a district court's fact findings unless clearly erroneous. Minn.R.Civ.P. 52.01; Johnson v. Commissioner of Pub. Safety , 374 N.W.2d 577, 579 (Minn.App. 1985). In a court trial, the district court is the sole judge of witness credibility and may accept any or all of a witness's testimony. Roy Matson Truck Lines, Inc. v. Michelin Tire Corp. , 277 N.W.2d 361, 362 (Minn. 1979).
In a license revocation hearing, the Commissioner of Public Safety has the burden of proving by a preponderance of the evidence that the driver's alcohol concentration was .10 or above. Schultz v. Commissioner of Pub. Safety , 393 N.W.2d 373, 375 (Minn.App. 1986). The commissioner must establish that a chemical test of alcohol concentration was administered in a manner ensuring its reliability. State v. Dille , 258 N.W.2d 565, 567 (Minn. 1977). Once the commissioner makes a prima facie showing that a breath test was administered in accordance with proper procedures, the burden shifts to the challenger of the test results to produce evidence of unreliability. Tate v. Commissioner of Pub. Safety , 356 N.W.2d 766, 768 (Minn.App. 1984).
Bauer's expert witness's opinion was that the Intoxilyzer's simulator solution had dissipated at the time of Bauer's breath test, producing a result .005 higher than Bauer's actual alcohol concentration. In other words, the simulator solution, which serves to calibrate the Intoxilyzer, was not properly calibrating the device when Bauer was tested.
The commissioner's expert witness from the Bureau of Criminal Apprehension testified that Bauer's expert's analysis was "novel." According to the commissioner's expert, the simulator solution concentration of .115 was within the accepted range and would have produced reliable results. The Intoxilyzer operator testified he followed proper procedures in testing Bauer's breath and there were no irregularities in the test other than a printer problem, which caused a blurred results printout, but did not affect the reliability of the results.
Based on the record, the district court could conclude that the Intoxilyzer results were accurate. The court could, in its discretion, accept the testimony of the commissioner's expert as credible and reject the testimony of Bauer's expert. Roy Matson Truck Lines , 277 N.W.2d at 362.
Bauer argues our holding in Schultz requires reversal. In that case, we affirmed the district court's finding that the commissioner failed to meet its burden of proof. Although, as here, the simulator solution concentration in Schultz was within an acceptable range, the district court found that the test results were inaccurate based on the Intoxilyzer operator's testimony. Id. at 375. Our holding in Schultz , however, was limited to the particular factfindings of the district court in that case. Cf. Johnson , 374 N.W.2d at 579-80 (affirming district court's finding of Intoxilyzer reliability where there was evidence that simulator solution concentration was minimally outside the recommended range and there was conflicting expert testimony concerning reliability). Because the record supports the district court's finding that Bauer's alcohol concentration exceeded the legal limit, we affirm.