This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. ß 480A.08, subd. 3 (2000).

 

STATE OF MINNESOTA

IN COURT OF APPEALS

C5-01-2048

 

 

State of Minnesota,

Respondent,

 

vs.

 

Kevin Donald Stotts,

Appellant.

 

 

Filed July 9, 2002

Affirmed

Halbrooks, Judge

 

 

Wright County District Court

File No. K1980204

 

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

 

Thomas N. Kelly, Wright County Attorney, Brian A. Lutes, Assistant County Attorney, Wright County Government Center, 10 Second Street Northwest, Buffalo, MN 55313† (for respondent)

 

Peter J. Timmons, 2850 Metro Drive, Suite 321, Bloomington, MN 55425 (for appellant)

 

 

 

††††††††††† Considered and decided by Klaphake, Presiding Judge, Halbrooks, Judge, and Hanson, Judge.

U N P U B L I S H E D   O P I N I O N

HALBROOKS, Judge

††††††††††† Appellant challenges the district courtís order revoking his probation and executing his sentence.† Because the evidence supports the courtís finding that appellant violated the conditions of his probation by using alcohol, we affirm.

FACTS

††††††††††† Appellant Kevin Donald Stotts was arrested and charged with six counts of snowmobiling while intoxicated and refusing to submit to chemical testing.† The district court sentenced appellant to three yearsí probation with various conditions, including that he abstain from consuming alcohol and submit to random alcohol testing.

††††††††††† On March 29, 2001, appellant arrived at Wright County Government Center for a scheduled meeting with his probation officer, Craig Madson.† Madson smelled alcohol on appellantís breath and administered a preliminary breath test (PBT), which showed an alcohol concentration of 0.063.† Madson accompanied appellant to the Wright County jail, where Sergeant Janice Rivers administered an Intoxilyzer 5000 breath test.† That test indicated that appellantís alcohol concentration was 0.04.† Appellant was arrested for violating the terms of his probation.

At the requested probation-revocation hearing, appellant argued that the PBT result was neither reliable nor accurate because Craig Madson did not know when the PBT machine had last been recalibrated prior to March 29.† Second, appellant argued that the Intoxilyzer test result lacked foundation, accuracy, and reliability because Sergeant Rivers was unable to testify as to the perfect alcohol content of the Intoxilyzer simulator solution.

Appellant called Thomas Burr to testify as an expert witness in the area of drug and alcohol testing.† Burr testified that appellantís brand of chewing gum contains sugar alcohols that could erroneously register as alcohol on the PBT and Intoxilyzer and that cigarette smoke could compound or exacerbate this error.† Appellant contends that he smoked a cigarette and chewed gum just before meeting with Madson.† But on cross-examination, Burr conceded that 15 minutes is sufficient time for cigarette and gum residue to dissipate from oneís breath and that the Intoxilyzer is designed to measure deep lung air, not mouth contaminants.† Burr also stated that he has never published a scientific study on his theory of the effects of cigarettes and gum on blood-alcohol tests or subjected the theory to peer review.†

The district court found clear and convincing evidence that appellant had violated the terms of his probation by using alcohol, and sentenced appellant to an additional 30 days in jail.† This appeal follows.

D E C I S I O N

††††††††††† The district court has broad discretion to determine if there is sufficient evidence to revoke probation and should be reversed only if there is a clear abuse of that discretion.† State v. Austin, 295 N.W.2d 246, 249-50 (Minn. 1980).† The district court must find clear and convincing evidence of the probation violation.† Minn. R. Crim. P. 27.04, subd. 3(3).† Before revoking probation, the district court must

1) designate the specific condition or conditions that were violated, 2) find that the violation was intentional or inexcusable, and 3) find that need for confinement outweighs the policies favoring probation.†

 

Austin, 295 N.W.2d at 250.

Appellant argues that the district court erred or abused its discretion by (1) admitting evidence of the PBT at the contested probation-revocation hearing, (2) admitting evidence of the Intoxilyzer test at the same hearing, and (3) concluding that appellant had violated the terms of his probation by consuming alcohol.

Appellant argues that Minn. Stat. ß 169.121, subd. 6 (now found at Minn. Stat. ß 169A.41, subd. 2 (2000)), prohibits the use of PBT results as substantive evidence in a probation-revocation hearing, and that the district court erred as a matter of law in admitting the PBT results.† Appellant did not make this argument to the district court, and has, therefore, waived it.† See Roby v. State, 547 N.W.2d 354, 357 (Minn. 1996) (ďThis court generally will not decide issues which were not raised before the district court * * * .Ē (citation omitted)).

††††††††††† Appellant also argues that the district court abused its discretion by admitting evidence of the PBT results because appellantís probation officer did not know when the PBT machine had last been calibrated before March 29.† We have held that the results of a PBT screening test are admissible in a probable-cause hearing even without proof that the PBT machine was properly calibrated.† See Lundquist v. Commír of Pub. Safety, 411 N.W.2d 608, 610 (Minn. App. 1987) (holding that district court erred by not considering PBT results in a probable-cause hearing on the grounds that the calibration log was not introduced into evidence).†

Appellant offers no support for his contention that ďtestimony concerning some knowledge about the last calibration of the PBT is required in order to ensure its accuracy.Ē† The district court did not abuse its discretion by admitting the PBT results into evidence.

Appellant next argues that the Intoxilyzer reading was inadmissible as lacking foundation and accuracy because Sergeant Rivers could not recite the acceptable alcohol-concentration range of the Intoxilyzerís simulator solution.† Evidentiary rulings on foundation are within the sound discretion of the district court and are reviewed for an abuse of discretion.† Kelzer v. Wachholz, 381 N.W.2d 852, 854 (Minn. App. 1986).

To establish foundation for the admission of Intoxilyzer test results, the proponent must show that (1) the test was performed by a properly trained person and (2) the test was pursuant to approved training.† Minn. Stat. ß 634.16 (2000); State v. Dille, 258 N.W.2d 565, 567 (Minn. 1977).† The administration of the test is trustworthy when ďthere is a sufficient indicia of reliability or a showing of the steps necessary to ensure reliability.Ē† Ahrens v. Commír of Pub. Safety, 396 N.W.2d 653, 655 (Minn. App. 1986) (citation omitted).†

Here, Rivers testified that she was trained and certified to operate the Intoxilyzer.† She testified that before she administered the test, she performed the required diagnostic procedures to confirm that the machine was working properly.†

This showing established prima facie trustworthiness for foundation, and the burden then shifted to appellant to show that the test was not trustworthy.† See Dille, 258 N.W.2d at 568.† Appellant did not meet this burden.† Appellant does not argue that the calibration standard test result indicated that the simulator solutionís alcohol concentration was outside the acceptable range.† Even if it were, the district court would not be required to reject the test results.† See Johnson v. Commír of Pub. Safety, 374 N.W.2d 577, 579 (Minn. App. 1985) (admitting Intoxilyzer results even where a simulator solution reading was outside of the recommended range).† Appellant merely argues that Riversís inability to state the acceptable range makes the Intoxilyzer result untrustworthy.††

Test results may be accepted as valid by a trial court after considering all of the evidence, id. at 580, and as long as a test is correctly administered, the test results are recognized as valid by the courts.† Loxtercamp v. Commír of Pub. Safety, 383 N.W.2d 335, 337 (Minn. App. 1986), review denied (Minn. May 22, 1986).† Appellant has not shown that the Intoxilyzer test was incorrectly administered.† The district courtís finding that the Intoxilyzer test was reliable and admissible was not clearly erroneous.

Appellant also argues that the Intoxilyzer test was inadmissible because appellant was not under observation for 15 minutes before the test was administered, as required under standard Intoxilyzer procedure.† But the record shows that Craig Madson met with appellant before administering the PBT at approximately 3:45 p.m., and that Sergeant Rivers administered the first Intoxilyzer test at 4:00 p.m.† Madson testified that he observed appellant for at least 15 minutes before the Intoxilyzer test, and signed the Intoxilyzer report to indicate the sufficiency of the observation period.†

Moreover, this court

has consistently indicated that a deficiency in observation of the subject [prior to administration of the test] does not of itself invalidate the test, but merely gives the driver an opportunity to challenge the testís trustworthiness by suggesting why such a failure makes the test results unreliable.

 

State v. Wickern, 411 N.W.2d 597, 599 (Minn. App. 1987).† Appellant contends that the deficiency in observation time makes the test unreliable because the cigarette- and gum-related contaminants in his mouth, which appellant contends were causing the PBT and Intoxilyzer to erroneously indicate alcohol in his breath, were dissipating rapidly enough that had Rivers waited the full 15 minutes, the Intoxilyzer would have correctly indicated that appellantís breath was alcohol-free.† Appellant argues that his expertís unrebutted testimony established that the difference between appellantís two Intoxilyzer test results was indicative of mouth contaminants, and not alcohol ingestion, and that the district court abused its discretion by relying on the Intoxilyzer reading.††

But the district court was not compelled to credit appellantís expert or the expertís theory.† See Roy Matson Truck Lines, Inc. v. Michelin Tire Corp., 277 N.W.2d 361, 362 (Minn. 1979) (holding trial court, sitting without a jury, is sole judge of witness credibility and may accept all or only part of any witnessís testimony); Hager v. Commír of Public Safety, 382 N.W.2d 907, 909-10 (Minn. App. 1986) (affirming trial court conclusion that appellant presented no convincing evidence showing that chewing gum after consuming alcoholic beverages would in any way artificially raise the results of an Intoxilyzer test).

††††††††††† The district court found that appellantís probation officer smelled alcohol on appellantís breath on March 29, administered a PBT, and brought appellant to Sergeant Rivers, who administered an Intoxilyzer test that resulted in a .04 alcohol content reading.† The district court did not clearly abuse its discretion by finding that appellant violated the conditions of his probation by using alcohol and that the violation was intentional and inexcusable.

††††††††††† Affirmed.