This opinion will be unpublished and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

C1-00-2098

 

James O. Jasper, petitioner,
Appellant,

vs.

Commissioner of Public Safety,
Respondent.

 

 

Filed June 26, 2001

Affirmed; motion denied

Stoneburner, Judge

 

Dakota County District Court

File No. C00012954

 

 

Jeffrey S. Sheridan, Strandemo & Sheridan, P.A., 320 Eagandale Office Center, 1380 Corporate Center Curve, Eagan, MN 55121 (for appellant)

 

Mike Hatch, Minnesota Attorney General, Jeffrey F. Lebowski, Assistant Attorney General, Michael R. Pahl, Assistant Attorney General, Suite 500, 525 Park Street,         St. Paul, MN 55103 (for respondent)

 

            Considered and decided by Crippen, Presiding Judge, Klaphake, Judge, and Stoneburner, Judge.

 

 

U N P U B L I S H E D  O P I N I O N

 

STONEBURNER, Judge

 

Appellant James Jasper argues that the changes to the Intoxilyzer 5000 Series 68-01 have caused it to be a materially different instrument from the Intoxilyzer 5000 Series 64 and Series 66 approved in 1985, necessitating approval of the Series 68-01 through formal rulemaking.  Because the record does not show any material alterations to the original instrument or that the test results in this case were unreliable, we affirm.

FACTS

 

On March 5, 2000, Jasper was arrested for driving under the influence of alcohol.  Under the provisions of the Minnesota Implied Consent Law, Minn. Stat. § 169.123 (1998), Jasper submitted to a breath test using an Intoxilyzer 5000 Series 68-01.  The test showed that Jasper had an alcohol concentration of 0.24.  Respondent Commissioner of Public Safety revoked Jasper’s driving privileges, and Jasper petitioned the district court for review.  The district court sustained the revocation and Jasper appeals.

In 1985, the commissioner approved the Intoxilyzer 5000 pursuant to the Administrative Procedure Act, Minn. Stat. §§ 14.01 – .69 (1984).  Minn. R. 7502.0420, subp. 2 (1985).  The models in use at that time were the Intoxilyzer 5000 Series 64 and Series 66.   Both models used infrared technology, the only difference was their place of manufacture.  In the mid-1990s, the Bureau of Criminal Apprehension (BCA) issued a request for bids to upgrade the Intoxilyzer 5000, and in 1997, BCA approved the Intoxilyzer 5000 Series 68-01 for use in Minnesota.  In 1999, the commissioner issued orders clarifying that the 1985 rule approving the Intoxilyzer 5000 extends to the upgraded model.  Minnesota Dep’t of Pub. Safety, Comm’r’s Order Nos. 101 (May 1, 1997); 101a (May 8, 1998).  The Commissioner also approved the software changes to the Series 68-01 models by order.  Minnesota Dep’t of Pub. Safety, Comm’r’s Order No. 101b (Sept. 24, 1999).

Gwen Williams, a forensic scientist with the BCA, testified at the review hearing that the Intoxilyzer 5000 Series 68-01 employs the same method of infrared analysis as the Series 64 and Series 66 to determine alcohol concentration, and that the test results from the Series 68-01 are accurate and reliable.  Williams testified that the Series 68-01 is better able to discriminate between alcohol and other substances than the Series 64 and Series 66, because the Series 68-01 employs two additional filters to screen out non-ethyl alcohol substances that could affect the reading.  Williams testified that the Series 68-01 can measure the volume of air provided in a sample and a volume requirement can be set.  The commissioner has set the required volume at 1.1 liters of breath.  If the subject cannot satisfy the minimum volume requirement, the Series 68-01 rejects the sample.  The series 68-01 also rejects air samples that present a deviation of more than .006 between the subject test and the replicate test (two tests on the same sample) and requests a retest when that amount of deviation occurs.  The Series 64 did not measure breath volume and accepted air samples without regard to deviation between subject and replicate tests.  Because of these improvements, the Series 68-01 ensures a reading of deep-lung air, a result previously encouraged by the administering officer’s verbal admonitions to “keep blowing” even when the instrument registered an adequate sample.  See State v. Rader 597 N.W.2d 321, 324 (Minn. App. 1999) (holding due process not violated by officer’s asking defendant to continue blowing after instrument indicated adequate sample received).  According to Williams’ testimony, measuring deep-lung air gives a more accurate reading of a subject’s true alcohol concentration. 

Jasper did not call an expert witness.  Section 2 of the Intoxilyzer 5000 Series 68-01 Operator Notebook, attached to his trial brief, describes the differences between the Series 64/66 and the new model and states: “[t]he series 68-01 utilizes the same basic optical and analytical system.”

The district court sustained the revocation of Jasper’s driver’s license, finding that his test was valid, that the method of infrared analysis employed in the Intoxilyzer 5000 Series 68-01 is identical to the method employed in the instrument approved in 1985 and that a new rule is not required.  Jasper appeals.

D E C I S I O N

 

            Minnesota law requires revocation of driving privileges if the results of chemical testing show a driver has an alcohol concentration of 0.10 or more.  Minn. Stat. § 169.123, subd. 4(b) (1998) (current version, effective Jan. 1, 2001, at Minn. Stat. § 169A.52, subd. 4 (2000)).  To determine alcohol concentration, a breath test may be performed using a breath-testing instrument, which “employs infrared technology and has been approved by the commissioner of public safety for determining alcohol concentration.”  Minn. Stat. §§ 169.01, subd. 68 (defining “infrared breath-testing instrument”) (current version, effective Jan. 1, 2001, at Minn. Stat. § 169A.03, subd. 11 (2000)), 169.123, subds. 2(a) (stating chemical test may be performed on blood, breath, or urine), 2b(a) (stating breath test may be performed using breath-testing instrument) (1998) (current version, effective Jan. 1, 2001, at Minn. Stat. § 169A.15, subds. 3, 5 (2000)).

            Jasper argues that the commissioner is required to approve the Intoxilyzer 5000 Series 68-01 by formal rulemaking.  This court may declare a rule invalid if it determines that the rule goes beyond the statutory authority granted to the agency or if the rule was adopted without compliance with statutory rule-making procedures.  Rocco Altobelli, Inc. v. State, Dept. of Commerce, 524 N.W.2d 30, 36 (Minn. App. 1984).

            “The commissioner of public safety may promulgate rules to carry out the provisions of sections 169.121 and 169.123.”  Minn. Stat. § 169.128 (1998) (current version, effective Jan. 1, 2001, at Minn. Stat. § 169A.75 (2000)).  This provision grants the commissioner authority to engage in rulemaking pursuant to the Minnesota Administrative Procedures Act.  See Minn. Stat. § 14.05, subd. 1 (2000) (“Each agency shall adopt, amend, suspend, or repeal its rules in accordance with the procedures specified in sections 14.001 to 14.69.”).  Approval of the infrared testing equipment is a rule because the instrument affects the rights and procedures available on a daily basis to law enforcement officers, the motoring public, and the courts.

            This court has previously deferred to the commissioner’s construction of the original rule that approval of the Intoxilyzer 5000 extends to the Series 68-01, including software upgrades.  See Schuster v. Commissioner of Pub. Safety, 622 N.W.2d 844, 847 (Minn. App. 2001).  In Schuster, this court qualified that the record was completely devoid of any evidence “to demonstrate the materiality of alterations to the device that have occurred since 1985.”  Id

In this case, Jasper asserts that the record contains evidence demonstrating the materiality of the alterations to the device, based primarily on Williams’s testimony that the Series 68-01 will reject an air sample that presents a deviation of more than .006 between the subject test and the replicate test.  Jasper argues that a driver may refuse to retest when a sample is rejected, thereby increasing the risk of a charge of refusing to test.  No evidence was presented that such a situation has occurred.  Jasper concedes that his sample was not rejected.  Such a speculative assertion does not establish a material alteration.  The Series 68-01, according to expert testimony and the Operator Notebook, “utilizes the same basic optical and analytical system” as the Series 64.  Because there is no evidence demonstrating material alterations to the original instrument approved by the commissioner, we continue to defer to the commissioner’s construction of the 1985 rule as approving the current model of Intoxilyzer 5000 in use in Minnesota.  See id.

Jasper argues also that the Commissioner failed to establish that the Intoxilyzer 5000 Series 68-01 used to sample his breath is reliable and comports with the foundation requirements of Minn. Stat. §§ 169.01, subd. 68, 634.16 (1998).  As the proponent of the test, the commissioner must make a prima facie showing “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) (citations omitted).  The commissioner presented expert testimony that the Intoxilyzer 5000 Series 68-01 is reliable, and testimony that the operator was properly trained and that the test was properly administered.  Once the state has met its burden, the defendant must come forth with evidence showing reasons why the results of the tests were unreliable.  Id. at 568; Scheper v. Commissioner of Pub. Safety, 380 N.W.2d 222, 224 (Minn. App. 1986); Fritzke v. Commissioner of Pub. Safety, 373 N.W.2d 649, 650 (Minn. App. 1985) (holding defendant must produce specific proof an outside factor affected the test results).  Jasper has presented no evidence that the results were unreliable.  The commissioner met its burden, and the results were properly admitted into evidence.

Jasper also moved this court to strike background information in the commissioner’s brief.  Because this information is not material to the issues in this case, Jasper’s motion to strike is denied.

Affirmed; motion denied.