This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (2000).
STATE OF MINNESOTA
IN COURT OF APPEALS
Andrew Durward Adair,
Filed March 27, 2001
Larry Collins, Waseca County Attorney, Paul M. Dressler, Assistant County Attorney, 307 North State Street, Waseca, MN 56093 (for respondent)
Thomas K. Hagen, Patton, Hoversten & Berg, P.A., 215 East Elm Avenue, Post Office Box 249, Waseca, MN 56093 (for appellant)
U N P U B L I S H E D O P I N I O N
SCHUMACHER, ROBERT H., Judge
Appellant Andrew Durward Adair challenges his driving under the influence conviction, arguing that (1) the arresting officer did not have probable cause for the seizure or arrest; (2) the state failed to meet its burden to establish the reliability of the electronic blood-alcohol breath test; and (3) the Intoxilyzer 5000, series 68, machine was not properly authorized for use by the commissioner of public safety. We affirm.
On November 19, 1999, around midnight, state trooper David Anderson was using a radar device and clocked an oncoming car's speed at 86 miles per hour. Anderson followed the car and eventually pulled it over. The driver was Adair. Anderson spoke to Adair for a few moments and then went back to his car to write up a traffic citation for driving in excess of the posted speed limit of 55 miles per hour. During the initial exchange, Adair faced directly forward without making eye contact with Anderson.
Anderson returned to Adair's car to give him the speeding ticket. When Adair rolled down his window to take the ticket, Anderson detected the odor of alcohol emanating from inside the car. Anderson recalled that in his earlier conversation with him, Adair had faced forward without making eye contact. The odor along with Adair's behavior aroused Anderson's suspicions that Adair may have consumed alcohol and was attempting to conceal that fact.
Anderson noticed that Adair had watery and bloodshot eyes. Although initially Adair told the officer that he had consumed one beer earlier in the night, he later said that he had shared three pitchers of beer with two companions throughout the evening. Adair agreed to take several field sobriety tests, and fared poorly in each test. Finally, Adair agreed to blow into a preliminary breath testing instrument, which indicated that he had a blood-alcohol level of .119 percent.
Anderson placed Adair under arrest for driving under the influence of alcohol. At the sheriff's office, Adair agreed to submit to a breath test to determine his blood alcohol content. The machine used to administer the test is called the Intoxilyzer 5000, series 68. Anderson, a certified Intoxilyzer operator who re-certifies every two years, administered the breath test. The Intoxilyzer indicated that Adair had a blood alcohol level of .12 percent.
The Commissioner of Public Safety revoked Adair's driving privileges pursuant to Minn. Stat. § 169.123, subd. 4(e) (1998). After an implied consent hearing, the district court sustained the suspension. The district court determined that (1) Anderson had probable cause to stop and arrest Adair, (2) the Intoxilyzer breath test was administered in a reliable manner, and (3) the Intoxilyzer 5000, series 68, was properly authorized for use under the Minnesota Administrative Procedures Act.
Prior to trial of the driving under the influence charge, Adair moved to suppress the evidence and dismiss the charge. Adair's attorney stipulated to the facts adduced at the implied consent hearing. The district court again held that the stop was proper, that Anderson was qualified to administer the breath test, and that use of the Intoxilyzer 5000, series 68, was properly authorized. Adair stipulated to the facts presented at the implied consent hearing and waived a jury trial. The district court found Adair guilty of violating Minn. Stat. § 169.121, subd. 1(a) (1998), driving under the influence of alcohol.
1. Adair concedes that an officer's observation of a traffic violation provides the officer with lawful basis for an initial stop. See State v. George, 557 N.W.2d 575, 578 (Minn. 1997). Adair contends, however, that Anderson had no lawful basis to investigate the possibility that Adair had consumed alcoholic beverages.
In reviewing orders on motions to suppress evidence, a reviewing court may independently review the facts and determine, as a matter of law, whether the district court erred in suppressing or not suppressing the evidence. State v. Harris, 590 N.W.2d 90, 98 (Minn. 1999).
If a police officer reasonably suspects a person has been involved in criminal activity, the police officer may temporarily seize that person to investigate him or her for criminal wrongdoing. State v. Cripps, 533 N.W.2d 388, 391 (Minn. 1995). To be considered reasonable, an officer's suspicion must be based on specific, articulable facts. Id. The officer's assessment may be based on all the circumstances and the officer may draw inferences and deductions that might elude an untrained person. Berge v. Commissioner of Pub. Safety, 374 N.W.2d 730, 732 (Minn. 1985).
Both parties and the district court cite State v. Shellito, 594 N.W.2d 182, 186 (Minn. App. 1999), for the following proposition:
When the original suspicion justifying the stop [is] dispelled * * * a police officer may not continue to search an automobile driver unless there is additional suspicion remaining.
Id. (citation omitted). Absent articulable reasons for further suspicion, a stop must end as soon as a police officer hands a speeding ticket to a motorist. See State v. Bell, 557 N.W.2d 603, 606 (Minn. App. 1996) (justification for detention of person stopped for routine traffic violation ended at point officers handed over traffic ticket), review denied (Minn. Mar. 18, 1997).
We do not read Bell as requiring that an officer handing over a traffic ticket must block out any evidence of another crime that comes his or her way. Anderson smelled the odor of alcohol in the course of handing over the ticket. That was not a continued "search" within the meaning of Shellito because it involved no further intrusion.
Once Anderson detected that odor of alcohol, however, a new suspicion arose such that he was justified in administering field sobriety tests and a preliminary breath test. See Hager v. Commissioner of Pub. Safety, 382 N.W.2d 907, 911 (Minn. App. 1986) (officer was justified in administering preliminary screening test where, after routine traffic stop, officer detected odor of alcoholic beverage and noticed suspect's eyes were bloodshot and watery), review denied (Minn. Apr. 24, 1986). When Adair failed these tests, Anderson was justified in making the arrest. Indeed, an arrest for driving under the influence of alcohol is appropriate where an officer makes a lawful stop of a person's vehicle and immediately thereafter observes by the person's demeanor indicating that he is under the influence of alcohol. Marben v. State, Dep't of Pub. Safety, 294 N.W.2d 697, 700 (Minn. 1980); see also State v. Faber, 343 N.W.2d 659, 660 (Minn. 1984) (holding trial court properly denied motion to suppress blood test results where officer had made proper traffic stop and then made observations of defendant's condition giving probable cause for DUI arrest). We conclude the stop, investigation, and arrest were proper in this case.
2. Adair argues that the Intoxilyzer 5000, series 68, was not properly approved under the Minnesota Administrative Procedures Act. In Order Nos. 101, 101a, and 101b authorizing the series 68, machine the commissioner has specifically referenced Minn. R. 7502.0420, subp. 2 (1999), which states as follows:
The Intoxilyzer 5000 instrument, which uses infrared technology, is approved for use in this state for the purpose of determining the alcohol concentration of a breath sample.
We have recently deferred to the commissioner's own construction of the rule as authorizing the Intoxilyzer 5000, series 68, because the record was silent as to any significant differences between the Intoxilyzer 5000 and its series 68. Schuster v. Commissioner of Pub. Safety, ____ N.W.2d ____ (Minn. App. Mar. 13, 2001). The record here is similarly silent, and consequently we follow Schuster in concluding that the commissioner properly authorized the Intoxilyzer 5000, series 68, machine.
3. Adair claims that the trial court erred in determining that the state had demonstrated that the breath test results were reliable. Adair points out that Anderson did not testify that he was certified to operate newer models of the Intoxilyzer 5000, namely the series 68.
Rulings concerning foundation for admission of evidence are within the discretion of the trial court and will not be reversed absent an abuse of that discretion. Johnson v. Washington County, 518 N.W.2d 594, 601 (Minn. 1994). The findings of the trial court will be upheld unless clearly erroneous. Noren v. Commissioner of Pub. Safety, 363 N.W.2d 315, 317 (Minn. App. 1985).
The results of an infrared breath test, e.g., the Intoxilyzer test, are admissible as evidence in criminal proceedings if administered by a person who has been fully trained in administering such tests. Minn. Stat. § 634.16 (1998). As the proponent of the Intoxilyzer test, the state must establish, prima facie, "that the test itself is reliable and that its administration in the particular instance conformed to the procedure necessary to ensure reliability." State v. Dille, 258 N.W.2d 565, 567 (Minn. 1977). Once the state has met this burden, it is incumbent upon the defendant to suggest a reason why the test is untrustworthy. Id. at 568. Error in the test results cannot be established by mere speculation. See Bielejeski v. Commissioner of Pub. Safety, 351 N.W.2d 664, 666 (Minn. App. 1984). Rather, the defendant must produce specific proof that an outside factor affected the test results. Fritzke v. Commissioner of Pub. Safety, 373 N.W.2d 649, 651 (Minn. App. 1985).
Here, Anderson testified that he was a certified operator of the Intoxilyzer and that he followed the proper steps in administering the test. Anderson noted that he first became certified to administer the test in the mid-1980s, was again certified when the Intoxilyzer was placed into state-wide use, and was required to become re-certified every two years. We conclude this satisfies the state's burden of reliability. Adair, on the other hand, offers only speculation that Anderson might not be certified or trained in use of the Intoxilyzer 5000, series 68. He offers no evidence that this machine is substantially different from its predecessor models.