This opinion will be unpublished and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

C1-00-1629

 

 

Dale Maynard Husfeldt,

petitioner,

Appellant,

 

vs.

 

Commissioner of Public Safety,

Respondent.

 

 

Filed April 17, 2001

Affirmed

G. Barry Anderson, Judge

 

Sibley County District Court

File No. C199274

 

Richard L. Swanson, 1059 Stoughton Avenue, P.O. Box 85, Chaska, MN  55318 (for appellant)

 

Mike Hatch, Minnesota Attorney General, Matthew G. Frank, Assistant Attorney General, 525 Park Street, Suite 500, St. Paul, MN  55103 (for respondent)

 

            Considered and decided by G. Barry Anderson, Presiding Judge, Lansing, Judge, and Halbrooks, Judge.

 

U N P U B L I S H E D   O P I N I O N

G. BARRY ANDERSON, Judge

            Appellant sought to rescind the Commissioner of Public Safety’s order revoking his driver’s license, arguing that an 88% sample comparison rendered the Intoxilyzer test result unreliable.  The district court found the test valid and denied appellant’s motion.  Because appellant failed to rebut the Commissioner’s initial showing of reliability, we affirm.

FACTS

Gaylord Police Officer John Spindler arrested appellant Dale Maynard Husfeldt for driving while under the influence of alcohol.  After reading appellant the implied consent advisory, Officer Spindler accompanied him to the police station where appellant contacted an attorney and, shortly thereafter, agreed to take an Intoxilyzer test. 

Prior to appellant’s test, Sibley County Deputy Sheriff Patrick Nienaber determined that the Intoxilyzer machine properly performed the diagnostic and air blank tests and that the calibration standards were in the appropriate ranges. 

Appellant submitted two breath samples; the Intoxilyzer performed two tests and recorded an alcohol level of .12 with a test sample comparison of 88%.  As a result, the Commissioner revoked appellant’s driving privileges.

Appellant moved to rescind the Commissioner’s order revoking his driver’s license arguing that the 88% sample comparison rendered the test results unreliable.     At the joint implied consent/omnibus hearing, Deputy Nienaber testified that the Intoxilyzer machine worked properly during appellant’s testing, and although his certified Intoxilyzer training taught him to “hope” for a minimum comparison sample of 90%, he did not recall ever being told that a comparison sample below 90% was invalid or inaccurate.

The Commissioner also introduced testimony by Karen Kierzek, an expert in the breath testing section of the Minnesota Bureau of Criminal Apprehension (BCA).  Kierzek testified that, in her expert opinion, the test results appeared to be valid.  Kierzek explained that she reached this conclusion because the machine passed its diagnostic and air blank tests, and the calibration levels were in an appropriate range.  Kierzek stated that the 88% comparison sample was insignificant because appellant’s breath volume varied between samples, and was lower than a typical man of appellant’s height and weight.  Kierzek testified that although the BCA recommends a 90% or higher sample comparison, that percentage is not a requirement. 

Appellant cross-examined both witnesses, but did not submit evidence or introduce witnesses to dispute the reliability of the Intoxilyzer test results.

            The district court, after reviewing the parties’ post-hearing briefs, denied appellant’s motion stating, “[b]ased on the testimony at the trial, the Court finds that the test was valid and reliable, notwithstanding a sample comparison less than 90[%].”  Appellant contests this finding.

D E C I S I O N

Appellant challenges the district court’s denial of his motion to rescind the Commissioner’s order revoking his driver’s license, arguing that the district court erred by finding the Intoxilyzer test results reliable.  A district court’s evidentiary rulings will not be reversed absent an abuse of discretion.  Lindberg v. Commissioner of Pub. Safety, 498 N.W.2d 301, 303 (Minn. App. 1993).  We will not reverse a district court’s findings of fact unless they are clearly erroneous.  Thompson v. Commissioner of Pub. Safety, 567 N.W.2d 280, 281 (Minn. App. 1997), review denied, (Minn. Sept. 25, 1997).

The proponent of a chemical test must lay sufficient foundation to establish that the test is reliable and that its administration conforms to the procedures necessary to ensure reliability.  State v. Dille, 258 N.W.2d 565, 567 (Minn. 1977).  After the proponent makes a prima facie showing of reliability, the opponent may present rebuttal evidence.  Pasek v. Commissioner of Pub. Safety, 383 N.W.2d 1, 3-4 (Minn. App. 1986).  The burden of persuasion regarding the accuracy of the result remains with the proponent of the evidence.  Dille, 258 N.W.2d at 569 n. 2. 

            Appellant argues that respondent “failed to establish, prima facie, that appellant’s test results were valid * * * .”  Appellant’s attorney, however, conceded this issue during the omnibus hearing by stating,

[the Commissioner] has the initial burden under State v. Dille and then certainly I think that they have made that initial burden here by the testimony with reference to the diagnostic pass and the calibration standard was well within limits.

 

Consequently, the burden shifted to appellant to rebut the Commissioner’s initial showing of reliability by presenting evidence challenging that foundation.  See Loxtercamp v. Commissioner of Pub. Safety, 383 N.W.2d 335, 337 (Minn. App. 1986) (explaining that once Commissioner established a prima facie case, driver is free to come forth with evidence challenging foundation), review denied (Minn. May 22, 1986).  But appellant presented no evidence or witness testimony disputing the validity of the Intoxilyzer test.  Instead, appellant contends he rebutted the Commissioner’s initial showing of reliability by establishing, through cross-examination, that the 88% sample comparison was lower than the 90% “good” sample comparison recommended by the BCA, and further argues that the Commissioner’s expert failed to adequately explain why a sample comparison below 90% occurred here. 

We find appellant’s arguments unpersuasive.  Minnesota courts have held that a sample comparison less than 90% alone does not render an Intoxilyzer test unreliable.  See Hager v. Commissioner of Pub. Safety, 382 N.W.2d 907, 910 (Minn. App. 1986) (district court properly admitted test result where driver presented no evidence on the effect an 88% sample comparison had on the test result); Bielejeski v. Commissioner of Pub. Safety 351 N.W.2d 664, 666 (Minn. App. 1984) (district court properly admitted test result where driver presented no evidence but only “an invitation to speculation” as to cause of results within BCA guidelines).

Moreover, this court has repeatedly rejected claims that a sample comparison below 90% renders a test invalid.  See Young v. Commissioner of Pub. Safety, 420 N.W.2d 585, 586 (Minn. 1988) (88% sample comparison); Wells v. Commissioner of Pub. Safety, 392 N.W.2d 721, 724 (Minn. App. 1986) (89% sample comparison);  Schwarzrock v. Commissioner of Pub. Safety, 388 N.W.2d 425, 426 (Minn. App. 1986) (86% sample comparison); Daley v. Commissioner of Pub. Safety, 384 N.W.2d 536, 538 (Minn. App. 1986) (86% sample comparison); Hagar, 382 N.W.2d at 910 (88% sample comparison); Abe v. Commissioner of Pub. Safety, 374 N.W.2d 788, 791 (Minn. App. 1985 (87% sample comparison); Zern v. Commissioner of Pub. Safety, 371 N.W.2d 82, 84 (Minn. App. 1985) (89% sample comparison).[1]

Appellant next argues that this court should adopt a 90% sample comparison standard to regulate the admissibility of Intoxilyzer test results.  As support, appellant asserts that because this court has refused to adopt a test standard when the BCA does not provide guidance, using inverse logic, this court should adopt a standard where the BCA has provided some guidance on an issue.  See Genung v. Commissioner of Pub. Safety, 589 N.W.2d 311, 313 (Minn. App. 1999) (holding that this court will defer to the Commissioner and not create a purge-before-testing requirement for urine tests because the BCA is silent on the issue), review denied, (Minn. May 18, 1999).

But the Minnesota Supreme Court has held that the 90% comparison standard set by the BCA “does not have the force of law.”  Young, 420 N.W.2d at 587 (holding there is no legal requirement of a minimum sample comparison).  More importantly, this court has refused to adopt a minimum standard regarding sample comparison percentages.  Daley, 384 N.W.2d at 539 (“This court has already determined that test results that have a correlation of below 90[%] may be reliable, and we will not adopt a rule holding otherwise in this case.”).

Accordingly, we conclude that the district court did not clearly err by finding the Intoxilyzer test results reliable.

            Affirmed.



[1] Appellant cites Decker v. Commissioner of Pub. Safety, No. C6-92-25 (Minn. App. June 23, 1992) as authority for finding the test results unreliable.  We disagree.  First, as an unpublished opinion, Decker has no precedential authority.  Minn. Stat. § 480A.08, subd. 3(c) (2000); Dynamic Air, Inc. v. Bloch, 502 N.W.2d 796, 800-01 (Minn. App. 1993).  Second, Decker is distinguishable.  The Decker court found that the low 80% sample comparison and the “bare threshold reading of .10” was enough to affirm the district court’s finding that the Commissioner had not adequately proven the reliability of the test results.  Id.  In contrast, appellant’s sample comparison was substantially higher at 88%, and his .12 blood alcohol content was greater than the driver in Decker.