IN COURT OF APPEALS
Mark Allen Kramer,
Commissioner of Public Safety,
Carver County District Court
File No. CV-04-893
Richard L. Swanson,
Mike Hatch, Attorney General, Catherine M. Powell, Assistant
Attorney General, 1800
Considered and decided by Minge, Presiding Judge; Kalitowski, Judge; and Shumaker, Judge.
An incidental error in a report printed by an Intoxilyzer 5000 does not overcome the prima facie accuracy of the machine’s test results where it is established by evidence that (1) the operator is certified; (2) diagnostic checks of the machine and chemicals are error-free; and (3) proper procedures were followed in testing the defendant.
Appellant challenges revocation of his driver’s license on the ground that the breath test results from the Intoxilyzer 5000 were not entitled to a presumption of accuracy when the machine, without explanation, printed the wrong date. Because the Commissioner of Public Safety established that the normal testing standards critical for accurate determination of alcohol concentration had been met and that appellant’s alcohol concentration exceeded that permitted for drivers of vehicles, appellant had the burden of coming forward with evidence that the date error indicated machine malfunction that affected the validity of the resulting alcohol concentration. Because appellant introduced no such evidence, we affirm.
Allen Kramer challenges the district court’s revocation of his driver’s license
under the Implied Consent Law, Minn. Stat. §§ 169A.50-.53 (2004). Appellant was arrested for DWI on September
6, 2004, and submitted to an Intoxilyzer 5000 breath test. Deputy Daniel Robert Snow, a
At the implied consent hearing, Snow testified that before he administered the Intoxilyzer test he checked the appellant’s mouth for regurgitation or belching and turned off his radio to prevent interference with the testing equipment, and that the Intoxilyzer performed the appropriate diagnostic checks. The record also indicates that before the test was administered, the arresting officer observed the appellant for 15-20 minutes. Based on two separate readings, using two separate mouth pieces, Snow determined appellant’s alcohol concentration level was .12. Snow testified that, in his opinion, the diagnostic results were within the proper limits and that the Intoxilyzer result was valid and reliable.
Snow further testified that, a week after administering the test, he realized that the date printed on the Intoxilyzer report was incorrect. All other relevant information, however, including the time of the test, was correct. At his supervisor’s direction, Snow prepared a supplemental report stating that the correct test date was September 6, 2004, the date of appellant’s arrest, not September 16, 2004, the date reflected on the report print-out. Appellant did not object when the Intoxilyzer report was admitted into evidence. However, appellant contended that because the commissioner did not establish that the date error did not affect the measuring functions of the Intoxilyzer, the test results were not prima facie reliable and should be rejected. The district court rejected appellant’s argument. This appeal followed.
Was it error for the district court to place the burden on appellant to establish that the wrong date in the printed results from the Intoxilyzer compromised the otherwise admissible results of that machine’s test of appellant’s breath?
The material facts of this
case are not in dispute. Rather,
appellant asserts that the district court erred, as a matter of law, by concluding
that the Intoxilyzer report that is the basis for his conviction is prima facie
reliable. While a district court’s
findings of fact will not be set aside unless clearly erroneous, Schultz v. Comm’r of Pub. Safety, 393
N.W.2d 373, 375 (Minn. App. 1986), a reviewing court will not give deference to
the district court’s application of the law when the material facts are not in
dispute. Hubred v. Control Data Corp., 442 N.W.2d 308, 310 (
Because proceedings under
the Implied Consent Law are civil in nature, the commissioner need only
demonstrate that revocation of driving privileges was appropriate by a
preponderance of the evidence. Llona v. Comm’r of Pub. Safety, 389 N.W.2d
210, 211 (
Prima Facie Requirements
The commissioner meets his
burden by demonstrating that a certified Intoxilyzer operator administered the
test, and that diagnostic checks showed that the Intoxilyzer machine was in
working order and the chemicals used were in proper condition. Zern v.
Comm’r of Pub. Safety, 371 N.W.2d 82, 83 (Minn. App. 1985); see also State v. Nelson, 399 N.W.2d 629,
632 (Minn. App. 1987), review denied
(Minn. Apr. 17, 1987); Ahrens v. Comm’r
of Pub. Safety, 396 N.W.2d 653, 656 (
In this case, appellant acknowledges that the Intoxilyzer report is from his September 6, 2004, arrest, and did not question Snow’s capabilities as a certified Intoxilyzer operator. Moreover, appellant does not challenge that Snow conducted air-blank checks, or that the chemical levels were within the expected ranges. Therefore, the evidence submitted by respondent establishes a prima facie case under current standards. See Zern, 371 N.W.2d at 83; Bielejeski, 351 N.W.2d at 666. Appellant contends that, because the Intoxilyzer report had the wrong date, the entire test must be rejected as unreliable. However, appellant confuses respondent’s requirement to present a prima facie case with appellant’s burden to refute that prima facie showing.
Refuting Prima Facie Case
“Once a prima facie showing of trustworthy administration has occurred, it is incumbent upon defendant to suggest a reason why the . . . test was untrustworthy.” Tate, 356 N.W.2d at 768 (quotation omitted). Specifically, the driver must present some evidence beyond mere speculation that questions the trustworthiness of the Intoxilyzer report. Bielejeski, 351 N.W.2d at 666. Typically, such an inquiry affects the weight of the report, not its admissibility. Nelson, 399 N.W.2d at 631.
The driver may
challenge the sufficiency of the prima facie case in a number of ways. For example, “the defense is free to argue the possibility
of contamination or other irregularity in the taking of a blood alcohol sample,”
id., or the driver may allege that
the Intoxilyzer gave a false reading because of a low chemical level. However, merely alleging that the chemical
testing solution was low does not automatically render the test
unreliable. Johnson v. Comm’r of Pub. Safety, 374 N.W.2d 577, 579-80 (
The driver may
also assert that the statutory requirements were not met. In Olson
v. Comm’r of Pub. Safety, the driver challenged his license revocation by
suggesting that an unauthorized individual took his blood sample for
testing. 513 N.W.2d 491, 492 (
that some impropriety or irregularity occurred during the observation period
which would render the test result invalid is also a proper basis for
challenging the test’s reliability. The
observation period is recommended by the Bureau of Criminal Apprehension (BCA)
as a means to ensure that the Intoxilyzer test results are accurate. Nelson,
339 N.W.2d at 630. The BCA recommends a pre-test
observation period of 15-20 minutes to allow for elimination of possible
contamination from the mouth cavity.
If the certified
Intoxilyzer operator does not personally conduct the pre-test observation
period, yet testifies to the test’s reliability, the driver may refute that
showing with evidence that the officer who did conduct the observation did so
in a faulty manner. Also, if the observing
officer is not trained in pre-test observation, and testifies that she did not
understand the purpose of the observation period, the commissioner’s prima
facie case of reliability is refuted. McGregor v. Comm’r of Pub. Safety, 386
N.W.2d 339, 340-41 (
Thus, there exist myriad ways for the driver to challenge the revocation of his driver’s license under the Implied Consent Law. However, arguing that something might have occurred is mere speculation and insufficient unless supported by additional evidence. Falaas, 388 N.W.2d at 42. This court requires that the driver establish a relationship between the alleged error and the validity of the results.
In this case, appellant does not contend that a faulty observation period, invalid testing procedures, or improper diagnostic checks produced an unreliable Intoxilyzer report. He only observed that the date “September 16, 2004,” instead of “September 6, 2004,” appears at the top of the Intoxilyzer report. Appellant did not present any evidence that such a misprint was an indication that the testing mechanism was not working properly, nor did appellant present evidence controverting Snow’s testimony that in his opinion, as a certified Intoxilyzer operator, the machine was in working order. Appellant simply asserts that the misprinted date is indicative of a larger problem that so undermines the validity and trustworthiness of the Intoxilyzer report as to negate its prima facie status. This is not enough.
D E C I S I O N
We conclude that the district court properly determined that respondent presented a prima facie case and that appellant failed to meet his burden to refute such a showing.