This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (2000).
State of Minnesota,
Ryan Thomas Casey,
Hennepin County District Court
File No. 00006280
Mike Hatch, Minnesota Attorney General, 525 Park Street, Suite 500, St. Paul, MN 55103; and
Jay M. Heffern, Minneapolis City Attorney, Michelle M. Jacobson, Assistant Minneapolis City Attorney, 300 Metropolitan Centre, 333 South Seventh Street, Minneapolis, MN 55402 (for appellant)
Douglas H. R. Olson, 510 First Avenue North, Suite 610, Minneapolis, MN 55403 (for respondent)
Considered and decided by Lansing, Presiding Judge, G. Barry Anderson, Judge, and Halbrooks, Judge.
G. BARRY ANDERSON, Judge
Appellant State of Minnesota argues that the district court erred by taking judicial notice of implied-consent hearing testimony and evidence that showed the Intoxilyzer test results were unreliable to suppress the test results in the criminal proceeding. Respondent argues that the state waived its opportunity to contest the reliability of the test results by failing to produce evidence at the pretrial hearing. Because the district court improperly used the doctrine of judicial notice to suppress the test results, and because the state did not waive its right to litigate the reliability of the test results, we reverse.
On January 20, 2000, at approximately 1:30 a.m., respondent Ryan Thomas Casey was driving westbound on Interstate Highway 394 in Minneapolis when his vehicle passed Minnesota State Trooper Scott Fredell’s squad car, also traveling westbound on Interstate Highway 394. Respondent was traveling approximately 65-mph in a 55-mph zone. Fredell stopped respondent and while asking him questions, Fredell detected an odor of alcohol and noticed that respondent’s eyes were dilated and his speech slurred. Fredell asked respondent to take a preliminary breath test (PBT); the results indicated an alcohol concentration of .166. Fredell arrested respondent for driving under the influence of alcohol.
Fredell transported respondent to the Hennepin County jail for chemical testing. During the first Intoxilyzer test sequence, the Intoxilyzer machine interrupted the sample because the simulator solution’s “reported value” was not in range. Several minutes later, the officer again tested respondent with the same machine, which indicated an alcohol concentration of .17.
During his implied-consent hearing, respondent challenged the accuracy and reliability of the Intoxilyzer test results. Respondent argued that the testing officer failed to follow proper procedures when testing him twice with a machine that initially malfunctioned. Respondent also produced evidence showing that seven days after police used the machine to test respondent’s sample, it was sent to a lab for repair. The district court ruled the test results were unreliable and rescinded the Commissioner’s revocation of respondent’s driving privileges. The Commissioner did not appeal from this judgment.
The State of Minnesota charged respondent with driving under the influence of alcohol in violation of Minn. Stat. § 169.121 (1998). Prior to trial, respondent filed a motion to suppress the Intoxilyzer results as unreliable and inaccurate and included the order from the implied-consent hearing together with supporting exhibits. At the omnibus hearing, the state argued that an order from an implied-consent hearing is not binding in a criminal trial, and the reliability of the test is an evidentiary issue to be determined by the jury. The district court ruled the Intoxilyzer test results inadmissible, stating:
While the results of the civil implied consent hearing are not precedential in this proceeding, the Court can and does take judicial notice of the sworn testimony and evidence in those proceedings and based on this finds that the Intoxilyzer unit used in this case was not reliable.
The state appeals this order suppressing the Intoxilyzer test results.
The State argues that the district court erred by taking judicial notice of implied-consent hearing testimony and evidence that showed the Intoxilyzer test results were unreliable to suppress the test results in the criminal proceeding. Respondent argues that the State waived its opportunity to contest the reliability of the test results by failing to produce evidence at the pretrial hearing. On appeal, we will not overturn a pretrial order of the district court unless the State can demonstrate clearly and unequivocally that the district court erred in its judgment and that, if not reversed, the error will critically impact the outcome of the trial. State v. Robb, 605 N.W.2d 96, 99 (Minn. 2000).
The State charged respondent with violating Minn. Stat. § 169.121, subds. 1(a), 1(d), and 1(e) (2000). The suppression of the Intoxilyzer results prevents prosecution of driving with a .10 alcohol concentration, although it does not affect a charge of driving under the influence of alcohol. We have held that a critical impact is shown when evidence essential to prove some, but not all, criminal counts was suppressed. See State v. Grohoski, 390 N.W.2d 348, 352 (Minn. App. 1986) (holding that the critical-impact test is met when, without the chemical-test evidence, four of six charges requiring proof of alcohol concentration would be dismissed), review denied (Minn. Aug. 27, 1986). We conclude that the suppression of the Intoxilyzer test result had a critical impact on the State’s case.
The State argues that the district court improperly took judicial notice of sworn testimony given during another proceeding to suppress the Intoxilyzer test results. A district court’s evidentiary decisions are subject to an abuse-of-discretion standard of review. State. v. Kennedy, 585 N.W.2d 385, 389 (Minn. 1998).
“Criminal cases are not normally the appropriate setting for judicial notice, particularly of disputed facts.” State v. Pierson, 368 N.W.2d 427, 434 (Minn. App. 1985). Even when applicable, judicial notice may be taken only of “facts of common knowledge not in dispute, and those for which neither expertise nor foundation is needed.” Id.; see also Minn. R. Evid. 201(b) (judicial notice in civil cases may be taken of facts generally known in jurisdiction or capable of accurate and ready determination by resort to unimpeachable sources).
The district court took judicial notice of the sworn testimony and evidence presented to the implied-consent court. But a review of the record shows that the reliability of the Intoxilyzer test results are in dispute; during the pretrial motion hearing, respondent argued that the Intoxilyzer was unreliable and the State argued that the test results would be proven reliable at trial. As the State notes, expert testimony would most likely be used to resolve the matter. In addition, the unreliability of any particular Intoxilyzer test is not a fact of common knowledge. Cf. Madison v. Commissioner of Public Safety, 585 N.W.2d 77, 83 n. 2 (Minn. App. 1998) (taking judicial notice that people suffering from a diabetic reaction may have symptoms similar to those of an intoxicated person, because it is a phenomenon of common knowledge in the medical and law-enforcement communities), review denied (Minn. Dec. 15, 1998). Accordingly, while the test results here are subject to substantial and significant challenges as to reliability and accuracy, we conclude that, under either an abuse-of-discretion standard or a clearly erroneous standard, the district court improperly used the doctrine of judicial notice to suppress the Intoxilyzer test results.
Because we conclude that the court improperly used judicial notice to suppress the Intoxilyzer test results, we need not address the collateral estoppel argument raised by the State.
At oral argument, respondent asserted that the State waived its right to challenge the reliability of the Intoxilyzer test results by failing to produce evidence at the pretrial motion. We disagree. There is no waiver here when a review of the record reveals that the State made an offer of proof when the prosecutor stated:
What the expert has indicated to me is that the simulator is not part of the [I]ntoxilyzer, so it does not mean that the [I]ntoxilyzer is not working, and in fact, she pointed out to me that it appears to her the [I]ntoxilyzer is working, because it was doing what it was supposed to do. It shut down when it wasn’t able to take an accurate sample, based on the temperature of the instrument. And again, I think that the issues regarding the accuracy of the test are best used as jury questions the jury can consider, based on the testimony of the State’s expert and the defense expert.
Given that the State was prepared to offer expert testimony and was precluded from doing so, we conclude the offer of proof was sufficient to avoid waiver. See State v. Lee, 494 N.W.2d 475, 479 (Minn. 1992) (a party fails to preserve for appeal a ruling excluding evidence when that party fails to make an offer of proof showing the nature of the evidence excluded). The effect of the district court’s order here is to deny the State the right to submit evidence that the Intoxilyzer machine was working properly. We do not, by reaching this result, endorse the State’s argument that the district court must admit into evidence the challenged test results.
The more troubling issue is the State’s belief that the reliability of the Intoxilyzer test is solely a jury question. While in certain circumstances the state may be correct, the district court is authorized to resolve evidentiary issues at the omnibus hearing. Minn. R. Crim. P. 11.04.
 While there is some dispute as to the timing of the notice of respondent’s suppression motion, there is no dispute that the maximum time afforded the State to respond to the suppression motion was two business days. Thus, there are potential notice issues, which we do not reach because we decide this case on other grounds. See Minn. R. Crim. P. 10.04, subd. 1 (requiring motions to be served at least three days before they are to be heard in order to allow the opposing party an opportunity to prepare).