This opinion will be unpublished and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

C3-01-1187

 

State of Minnesota,

Respondent,

 

vs.

 

Kathleen Marie Trebesh,

Appellant.

 

Filed April 23, 2002

Affirmed

Hanson, Judge

 

Ramsey County District Court

File No. K8-00-3535

 

Mike Hatch, Attorney General, 525 Park Street, Suite 500, St. Paul, MN 55103; and

 

Clayton Robinson, St. Paul City Attorney, Kyle Lundgren, Assistant City Attorney, 15 West Kellogg Boulevard, Suite 500, St. Paul, MN 55102 (for respondent)

 

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

 

            Considered and decided by Hanson, Presiding Judge, Schumacher, Judge, and Poritsky, Judge.[*]

U N P U B L I S H E D  O P I N I O N

HANSON, Judge

On appeal from a conviction of gross misdemeanor DWI, appellant argues that the district court erred by admitting into evidence results of her breath test and by using her 1991 DWI conviction and civil license revocation to enhance her current DWI offense to a gross misdemeanor.  We affirm.

FACTS

The following facts are not disputed.  One morning, at approximately 2:00 a.m., Minnesota State Trooper Liane Sellner observed the vehicle of appellant Kathleen Marie Trebesh straddling the lane divider.  Trooper Sellner followed Trebesh, observed the speed of Trebesh’s car vary between 40 and 60 miles per hour, and saw the car weave in and out of its lane at least three times. 

Trooper Sellner turned on her squad car’s emergency lights, which activated a video camera inside her car.  Trooper Sellner stopped and approached Trebesh’s vehicle, identified Trebesh as the driver, and noticed that Trebesh smelled of alcohol, that her eyes were bloodshot and watery, and that she slurred her speech.  Trooper Sellner asked Trebesh if she had been drinking.  Trebesh said that she had not.

Trooper Sellner asked Trebesh to perform three field sobriety tests.  Based on her observations, Trooper Sellner arrested Trebesh for driving under the influence of alcohol, placed Trebesh in the back seat of the squad car, and repositioned the video camera so that it would record Trebesh as she sat in the back of the car.  Trooper Sellner read the Implied Consent Advisory form to Trebesh, who agreed to take a breath test.

Trooper Sellner drove Trebesh to the St. Paul Police Headquarters.  After Trooper Sellner escorted Trebesh to the testing room, Trebesh took an Intoxilyzer 5000, Series 68-01 breath test.  It indicated that Trebesh’s alcohol concentration was 0.11%.

Respondent state charged Trebesh with the six following offenses:  (1) driving under the influence of alcohol within five years of a prior impaired driving conviction or prior license revocation; (2) driving with an alcohol concentration of 0.10 or more within five years of a prior impaired driving conviction or prior license revocation; (3) driving with an alcohol concentration of 0.10 or more as measured within two hours of driving and within five years of a prior impaired driving conviction or prior license revocation; (4) driving under the influence of alcohol within ten years of two or more prior impaired driving convictions; (5) driving with an alcohol concentration of 0.10 or more within ten years of two or more prior impaired driving convictions; and (6) driving with an alcohol concentration of 0.10 or more as measured within two hours of driving and within ten years of two or more prior impaired driving convictions. 

Before trial, Trebesh moved to bar the enhancement of the current offense as a third offense within ten years.  While she admitted a 1999 DWI conviction and license revocation, she contested a 1991 DWI conviction and license revocation, claiming that she could not remember it and there was no evidence that she had been represented by counsel.  Trebesh also moved to exclude the field sobriety test results and all evidence related to the Intoxilyzer 5000, Series 68-01 test.  The district court denied Trebesh’s pretrial motions.

At trial, Trebesh objected to the foundation of the breath-test evidence, but the district court overruled the objection.  The jury found Trebesh not guilty of having an alcohol concentration of .10 or more within two hours of driving, but guilty of driving under the influence of alcohol.  Trebesh moved for a judgment of acquittal or, in the alternative, a new trial.  The district court denied her motion.  The district court sentenced Trebesh to 365 days at Volunteers of America, with all but 60 days suspended, and two years probation.  This appeal followed.

D E C I S I O N


Trebesh argues that the district court erred by admitting evidence of the Intoxilyzer 5000, Series 68-01 test and its results and by allowing evidence of her 1991 DWI conviction and license revocation to be used for enhancement purposes.  We defer to the district court’s evidentiary rulings and will not overturn them absent a clear abuse of discretion.  State v. Kelly, 435 N.W.2d 807, 813 (Minn. 1989).

I

Trebesh challenges the admission of the breath test results on two grounds.  First, Trebesh argues that the district court erred by admitting both evidence that Trebesh took the Intoxilyzer 5000, Series 68-01 test and evidence of the test results because, at the time of her DWI arrest, that particular series had not been approved by the Commissioner of Public Safety pursuant to the formal rulemaking procedures of the Minnesota Administrative Procedures Act.  Second, Trebesh argues that the district court erred by overruling her foundation objection to the test results based on the claim that Trooper Sellner improperly administered the test.

Intoxilyzer 5000, Series 68-01

A breath test may only be performed with an “infrared breath-testing instrument” that “has been approved by the commissioner of public safety for determining alcohol concentration.”  Minn. Stat. §§ 169.01, subd. 68 (defining “infrared breath-testing instrument”), 169.123, subd. 2(a) (stating that a chemical test may be performed on blood, breath, or urine), 2b(a) (1998) (stating that a breath test may be performed using an infrared breath-testing instrument). 

In Schuster v. Comm’r of Pub. Safety, 622 N.W.2d 844, 847 (Minn. App. 2001), this court deferred to the commissioner’s Order No. 101b, in which the commissioner clarified that the original rule’s approval of the Intoxilyzer 5000 extends to Series 68-01, including software upgrades and changes.  We deferred to the commissioner’s order because “[b]oth instruments use the same method of infrared spectrometry, * * * the record include[d] no evidence demonstrating significant differences between the instruments[,]” and we defer “to an agency’s construction of its own regulations.”  Id. (citation omitted).

Trebesh argues that formal rulemaking is required because there are substantial, but unarticulated, differences between the original Intoxilizer 5000 and the Intoxilyzer 5000, Series 68-01.  But we reject that argument on the basis of Schuster, which already determined that the Intoxilyzer 5000, Series 68-01 is an appropriate testing instrument and that further rulemaking is not required.  See id.

Foundation

To provide foundation for the breath test results, Trooper Sellner testified that she is a certified Intoxilyzer 5000 test administrator and has been trained to interpret Intoxilizer test results.  She said that she did not see anything in Trebesh’s mouth before administering the exam and that she observed Trebesh for at least 25 minutes before the test was administered.  She agreed that the observation period is important to ensure that the suspect does not put anything in her mouth and to be sure that the suspect does not burp, belch, vomit, or regurgitate immediately before the test. 

On cross-examination, Trooper Sellner was unsure whether she left Trebesh alone in a holding cell for a few minutes while waiting for an Intoxilizer testing machine to become available, or administered the test immediately upon their arrival at the police station.  She acknowledged that a portion of her observation time occurred while Trebesh was seated in the back of the squad car.  The cross-examination raised further questions about the period of observation because the clock on the video in the squad car showed that Trebesh arrived at the police station at 2:33 a.m. and the clock on the Intoxilyzer 5000 shows that the test began at 2:36 a.m.  Trooper Sellner testified, however, that these clocks were not synchronized and that she determined the times of her observation by her own watch.  The district court overruled Trebesh’s foundation objection and admitted the test results into evidence. 

Trebesh’s objection and the cross-examination focused only on whether Trooper Sellner had observed Trebesh for the recommended 15-minute continuous period.  After Trooper Sellner had completed her testimony and the test results were admitted into evidence, Trebesh testified that she had an esophageal-reflux condition that caused her to regurgitate that evening, which, in turn, affected the test’s accuracy.  Trebesh also provided expert testimony that the observation period was inadequate to guarantee an accurate and reliable test and that Trebesh’s regurgitation would have produced an overstated alcohol concentration reading.

The state then presented expert testimony that while the observation of an arrestee while driving was discouraged, the test was appropriately administered by Trooper Sellner and, in any event, any regurgitation by Trebesh would not have affected the results because the Intoxilizer has built-in safeguards that would have detected mouth alcohol and invalidated the test if it was present.

Rulings on the admissibility of evidence are left to the district court’s sound discretion.  Colby v. Gibbons, 276 N.W.2d 170, 175 (Minn. 1979).  It is true that

[t]he proponent of a chemical or scientific test must establish that the test itself is reliable and that its administration in the particular instance conformed to the procedure necessary to insure reliability. 

 

State v. Dille, 258 N.W.2d 565, 567 (Minn. 1977) (citations omitted).  But this court has consistently held that a deficiency in the observation procedure does not of itself invalidate the test or defeat foundation for the test’s admissibility.  Erickson v. Comm’r of Pub. Safety, 415 N.W.2d 698 (Minn. App. 1987) (upholding admissibility against a claim that the officers left the room during the observation period); Melin v. Comm’r of Pub. Safety, 384 N.W.2d 474, 476 (Minn. App. 1986) (upholding admissibility after observation period of only seven minutes); Engen v. Comm’r of Pub. Safety, 383 N.W.2d 399 (Minn. App. 1986) (upholding admissibility where suspect was in the back seat of the squad car, out of the officer’s sight).

We are satisfied that the district court did not err by overruling Trebesh’s foundation objection.  The testimony of Trooper Sellner supported the district court’s conclusion that the period of observation was adequate.  Moreover, at the time the objection was made, Trebesh had not provided the court with any evidence of claimed contamination and made no offer of proof to that effect.  When a defendant challenges foundation based on an allegedly deficient observation, the defendant must prove that something actually occurred during the observation period to invalidate the test.  Isreal v. Comm’r of Pub. Safety, 400 N.W.2d 428, 430 (Minn. App. 1987).  While Trebesh offered this proof later, it was too late to be used as a basis for the foundation objection.

The district court did not abuse its discretion by allowing evidence regarding the Intoxilizer test and its results into evidence. 

II

Trebesh argues that the district court erred by allowing evidence of her 1991 DWI conviction and license revocation to be used for enhancement purposes.

Trebesh argues that the 1991 conviction could not be used for enhancement purposes because she was unrepresented by counsel in connection with the 1991 offense and there was no evidence that she had waived her right to counsel.  Where there is no record of an unrepresented defendant’s waiver of counsel at the time of the prior conviction, that conviction can be collaterally attacked on constitutional grounds and invalidated for purposes of an enhanced penalty statute.  State v. Nordstrom, 331 N.W.2d 901, 904 (Minn. 1983).  But Trebesh’s argument fails for several reasons. 

First, Trebesh did not adequately challenge the use of the 1991 conviction by the district court.  The defendant has the burden of properly challenging the constitutional validity of the prior conviction or revocation.  Nordstrom, 331 N.W.2d at 905 (challenge of conviction); State v. Dumas, 587 N.W.2d 299, 302-03 (Minn. App. 1998) (challenge of revocation), review denied (Minn. Feb. 24, 1999).  In her affidavit, Trebesh only stated: “I do not believe I had the full opportunity of consulting with an attorney I was entitled to when I was asked to submit to testing * * * .” and “I have no recollection of the alleged 1991 conviction and therefore do not believe that I waived counsel, on or off the record.”  Trebesh does not state unequivocally that she was not represented by counsel in connection with the 1991 conviction or that she did not waive counsel.

Second, even if Trebesh’s 1991 DWI conviction had been unconstitutionally obtained, her 1991 license revocation would have been enough to support an enhanced conviction because the lack of a full opportunity to consult with an attorney during an event that leads to a license revocation is not a constitutional violation.  Dumas, 587 N.W.2d at 302-03. 

Third, Trebesh’s argument is rendered moot because the enhancement can be based on the 1999 conviction alone, which she does not challenge.  See Minn. Stat. § 69.121, subds. 1(a), 3(c)(2) (1998) (stating that a conviction can be based on one prior conviction within five years).  While the distinction between the five-year and ten-year periods might have been relevant for sentencing, Trebesh has not challenged her sentence on this appeal and that sentence was a permissible one for enhancement by the 1999 conviction only.

            Affirmed.

 

[*] Retired judge of the district court, serving as judge of the Minnesota Court of Appeals by appointment pursuant to Minn. Const. art. VI, § 10.