Opinion
No. C4-95-2550.
Filed June 25, 1996.
Appeal from the District Court, Ramsey County, File No. C1958446.
Ronald S. Latz, (for Appellant)
Hubert H. Humphrey, III, Attorney General, Joel A. Watne, Asst. Attorney General, (for Respondent)
This opinion will be unpublished and may not be cited except as provided by Minn. Stat. § 480A.08, subd. 3 (1994)
Unpublished Opinion
Appellant, in challenging the district court decision sustaining the revocation of his driving privileges, argues that there was a deficiency in the officer's observation of him prior to his Intoxilyzer test and that respondent Commissioner of Public Safety had not made a prima facie case that the test was validly administered and yielded valid results. Because we see no deficiency in the officer's observation of appellant and conclude that his test was validly administered and yielded valid results, we affirm.
Facts
Appellant Scott Michael Rivers was arrested by Minnesota State Trooper John Korth for driving under the influence of alcohol in violation of Minn. Stat. § 169.121, subd. 1 (1994). After Korth read appellant the implied consent advisory form, appellant agreed to submit to a breath test. Korth, a certified Intoxilyzer operator, observed appellant for 15 to 20 minutes prior to administering the test. During the observation period, appellant sat on the bench provided for that purpose and did not eat, drink, or place anything in his mouth. Korth's handwritten notes on the Intoxilyzer test record reflect that he checked appellant's mouth and found nothing and that appellant was cooperative during the test and "blew hard both times."
The other part of the test record, a computer printout, says "diagnostic OK" and shows that the four air blank tests all revealed a concentration of .000. The printout also reflects that appellant provided a sample at 3:09 that had a concentration of .103 with a replicate test of .105; that a calibration standard test then revealed a concentration of .106 with a replication of .107; that appellant's second sample provided at 3:14 had a concentration of .105 with a replicate test of .108; that the breath correlation was 99 percent; and finally that the reported value of appellant's alcohol concentration was .10. Appellant's driving privileges were revoked on the basis of the test; he challenged the revocation.
The test record was admitted during the hearing. Asked on direct examination if he could identify it, Korth answered, "Yes, that would be a copy of a test from the intoxilyzer." He referred to the exhibit while answering questions, prompting appellant's counsel to remark, "Your Honor the witness is reading from the record again." The court asked, "Do you have an objection to it, Counsel?" and appellant's counsel answered, "Yes. * * * [H]e's not testifying independently from his memory as to the results." The court then asked "Do you have an objection to the Exhibit?" and appellant's counsel answered "No, not to the foundation for the exhibit itself. We don't challenge the validity of the test results."
Respondent's counsel claims this is either a misstatement by appellant's counsel or an inaccuracy in the transcript, and says there are other omissions in the transcript. Appellant's counsel, however, ordered the partial transcript of the hearing and does not challenge either its accuracy or the omission of portions that would be beneficial to his case.
Korth went on to testify about the information on the test record and said that appellant had seen and had not disputed the results of the test. Under cross-examination, Korth also testified that he could not recall what the acceptable standards for calibration and air blank tests were. The court sustained the revocation of appellant's license.
Decision Standard of Review
"Conclusions of law will be overturned only upon a determination that the trial court has erroneously construed and applied the law to the facts of the case." Dehn v. Commissioner of Pub. Safety, 394 N.W.2d 272, 273 (Minn.App. 1986).
Appellant argues that the court misapplied the law in determining that the revocation should be upheld because Korth's testimony showed deficiencies in his observation of appellant prior to the test and failed to establish a prima facie case that the test was properly administered.
1. The Observation Period
Appellant cites McGregor v. Commissioner of Public Safety, 386 N.W.2d 339 (Minn.App. 1986), to argue that defects in Korth's observation of appellant defeat the prima facie validity of the Intoxilyzer test. In McGregor, the driver was tested by one officer but observed prior to the test by another officer, who
had no training, did not know why the driver was to be observed, or what to observe. * * * [T]he officer had no understanding of the purpose of the [observation] procedure, thus making it impossible to ensure the reliability of the test.
Id. at 340-41. McGregor is readily distinguished from the case before us. Korth's testimony showed that he had been trained in Intoxilyzer procedure, had observed appellant to be sure appellant did not put anything in his mouth, had checked appellant's mouth and found no foreign substance,and had observed appellant for 15 to 20 minutes. Korth's testimony also showed that he knew the observation period is conducted to make sure drivers do not put anything into their mouths, do not fall asleep, and do not do "anything out of the ordinary." Korth was far from the untrained observer of McGregor. There is no evidence that appellant's Intoxilyzer test was invalid because of deficiencies in the observation period.
2. The Prima Facie Case
Respondent has the burden of proving a prima facie case of proper administration of an Intoxilyzer test. See State v. Dille, 258 N.W.2d 565, 567 (Minn. 1977). However, "[o]nce prima facie reliability of test administration is established, it is incumbent upon [the party opposing the test] to suggest reasons why the test was untrustworthy." McGregor, 386 N.W.2d at 340 (citing Dille, 258 N.W.2d at 568). Appellant has suggested no reasons why the test was untrustworthy; his counsel testified "We don't challenge the validity of the test results." Appellant argues, however, that respondent did not meet its burden of making a prima facie showing that the test was properly administered.
Appellant attempts to distinguish Loxtercamp v. Commissioner of Pub. Safety, 383 N.W.2d 335 (Minn.App. 1986), review denied (Minn. May 22, 1986); Fritzke v. Commissioner of Pub. Safety, 373 N.W.2d 649 (Minn.App. 1985); and Bielejeski v. Commissioner of Pub. Safety, 351 N.W.2d 664 (Minn.App. 1984), all of which held that a prima facie case of proper test administration is established by testimony that the air blank test and the control test produced the expected results.
Because Korth on cross-examination could not recall the limits for acceptable results of the air blank test and what the calibration standard test meant, appellant claims that Korth's testimony failed to establish a prima facie case. We disagree and conclude that a prima facie case was established.
Korth testified that there were four air blank tests, that there are supposed to be four, and that "the air blanks read zero." "A reading of room air [air blank] is taken which should give a reading of zero." Bielejeski, 351 N.W.2d at 666. Therefore the air blank test result was correct, and one element of the prima facie case of proper test administration was met. Korth's inability to recall the range of acceptable results for an air blank test on cross-examination is simply irrelevant.
Similarly, Korth testified that he ran a calibration standard test, that the result was .106 with a replicate of .107, and that those readings were within accepted standards for the calibration test. "If * * * the [calibration test] results are within .10 to .12, the [Intoxilyzer] machine has been shown to be functioning properly." Kadrlik v. Commissioner of Pub. Safety, 388 N.W.2d 8, 9 (Minn.App. 1986). This test result established another element of the prima facie case for proper administration of the test, and Korth's inability to recall the range of acceptable results is again irrelevant.
The district court did not erroneously apply the law when it held that respondent had established a prima facie case that appellant's Intoxilyzer test was properly administered and that there was no deficiency in the observation of appellant. The revocation of appellant's license was properly sustained.