This opinion will be unpublished and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

C9-01-2277

 

 

Robert Wermager, petitioner,

Appellant,

 

vs.

 

Commissioner of Public Safety,

Respondent.

 

 

Filed September 10, 2002

Affirmed

Halbrooks, Judge

 

 

Wright County District Court

File No. C3012029

 

Michael L. Samuelson, 925 South First Street, P.O. Box 1735, St. Cloud, MN 56302-1735 (for appellant)

 

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

 

 

 

            Considered and decided by Minge, Presiding Judge, Halbrooks, Judge, and Parker, Judge.*

U N P U B L I S H E D   O P I N I O N

HALBROOKS, Judge

At an implied-consent hearing, appellant attempted to present an expert witness to testify regarding the inaccuracy of the testing.  The trial court sustained the commissioner’s objection to appellant’s expert witness, ruling that, although appellant previously disclosed the expert’s name and that he is a forensic scientist, appellant did not disclose the basis of the expert’s testimony pursuant to Minn. Stat. § 169A.53, subd. 2(d)(4) (2000).  Because appellant failed to comply with the requirements of the implied-consent statute and because the trial court acted within its discretion, we affirm.

FACTS

            Just before midnight on June 25, 2001, Wright County Sheriff’s Deputy David Anderson stopped appellant Robert Wermager’s vehicle for an equipment violation.  During the course of the stop, Anderson developed probable cause to arrest appellant for driving under the influence of alcohol.  Anderson transported appellant to the Wright County Jail, where he read appellant the implied-consent advisory.  Appellant indicated that he understood the advisory and consulted by telephone with an attorney.  Appellant then voluntarily submitted to a breath test that yielded a result of .10. 

            Appellant’s driving privileges were revoked pursuant to the implied-consent statute, and he filed a petition for judicial review of the revocation, citing 37 reasons in a boiler-plate petition why the revocation should be rescinded.  The petition listed Thomas Burr as one of three potential witnesses, but stated that the basis for Burr’s testimony was “unknown.”  The matter was originally scheduled for a hearing on August 27, 2001.  Both parties’ counsel and the two officers involved in appellant’s arrest appeared for the hearing as scheduled.  But the court granted appellant’s counsel’s request for a continuance to October 1, 2001, so that he could confer with Burr and arrange for his testimony. 

On September 19, 2001, appellant served respondent with his witness list.  Appellant listed Thomas R. Burr as his witness, identifying Burr as a “forensic scientist” without any indication of the basis of Burr’s opinions. 

When appellant attempted to call Burr at the October 1 hearing, respondent objected on the ground that appellant had not provided the basis of Burr’s testimony.  The trial court sustained the objection and precluded Burr’s testimony.  Following trial, the court sustained the revocation of appellant’s driving privileges.  This appeal follows.

D E C I S I O N

1.         Exclusion of Evidence.

 

Absent an erroneous interpretation of the law, the question of whether to admit or exclude evidence, including expert testimony, lies within the discretion of the trial court.  Kroning v. State Farm Auto. Ins. Co., 567 N.W.2d 42, 45-46 (Minn. 1997); see Minn. R. Evid. 702 1977 comm. cmt. (stating that the admissibility of expert opinion rests in the discretion of the trial court).  Discovery associated with a petition for judicial review of a license revocation is governed by Minn. Stat. § 169A.53, subd. 2(d) (2000), which states:

            (d) Judicial reviews must be conducted according to the Rules of Civil Procedure, except that prehearing discovery is mandatory and is limited to:

            (1) the notice of revocation;

            (2) the test record or, in the case of blood or urine tests, the certificate of analysis;

            (3) the peace officer’s certificate and any accompanying documentation submitted by the arresting officer to the commissioner; and

            (4) disclosure of potential witnesses, including experts, and the basis of their testimony.

            Other types of discovery are available only upon order of the court.

 

Appellant claims that he satisfied the statutory requirement that he provide the basis of Burr’s testimony because his petition for judicial review stated that he would challenge the accuracy of the breath test.  Appellant also claims that respondent had notice that he would contest the accuracy of the test because Burr is a well-known expert on breath-test reliability, and respondent should have assumed that Burr would contest the accuracy of a .10 test result. 

But appellant’s notice in his boiler-plate petition for judicial review that he planned to challenge the accuracy of the test does not fulfill the requirements of Minn. Stat. § 169A.53, subd. 2(d)(4), because he never disclosed the basis for Burr’s testimony.  Were we to adopt appellant’s argument, the explicit provision of the statute requiring disclosure of the basis of a witness’s testimony would be surplusage, and we construe statutes to give effect to all of their provisions.  Minn. Stat. § 645.16 (2000) (“Every law shall be construed, if possible, to give effect to all its provisions.”).   

Further, the statutory requirement of Minn. Stat. § 169A.53, subd. 2(d)(4), which is imposed on both parties, does not alter the burden of proof, as appellant asserts.  Appellant claims that, because Minn. R. Evid. 703 allows expert testimony to be based on facts made known to the expert at the time of the hearing, it should have been sufficient to disclose Burr’s opinions after respondent presented its case-in-chief.  This argument is inconsistent with appellant’s position that his intent to challenge the accuracy of the test was manifest.  Moreover, it finds no support in the statute that, as noted, requires both parties to state the basis of a witness’s testimony prior to the hearing. 

2.         Denial of Continuance.

            Appellant claims that the trial court abused its discretion in choosing to exclude Burr’s testimony rather than granting a continuance.  The trial court has discretion in choosing remedies for discovery violations.  Dunshee v. Douglas, 255 N.W.2d 42, 45 (Minn. 1977).  Whether a trial court should preclude a witness’s testimony for a party’s failure to disclose depends on whether the failure is inexcusable and whether introduction of the testimony would prejudice the opposing party.  Uselman v. Uselman, 464 N.W.2d 130, 138 (Minn. 1990). 

On this record, we conclude that exclusion of Burr’s testimony was within the trial court’s discretion.  Appellant’s counsel offered no reason to the court for his failure to make the statutorily required disclosure.  Furthermore, appellant did not ask that the hearing be continued, as he had previously done.  The trial court properly found that the introduction of Burr’s testimony would prejudice respondent because it had no chance to prepare cross-examination or procure its own expert for rebuttal of specific opinions. 

The implied-consent statute is to be construed against the interests of the driver in favor of the public interest in transportation safety.  State, Dep’t of Pub. Safety v. Juncewski, 308 N.W.2d 316, 319 (Minn. 1981).  Given the strong public interest in ensuring safety on the highways and the prejudice to respondent in preparing rebuttal for Burr’s undisclosed testimony, the decision to preclude Burr from testifying was within the trial court’s discretion. 

3.         Due Process.

            Finally, appellant claims that the exclusion of his expert’s testimony constituted a denial of due process because it deprived him of his “day in court.”  Appellant raises this argument for the first time on appeal.  Consequently, we decline to consider it.  Thiele v. Stich, 425 N.W.2d 580, 582-83 (Minn. 1988) (holding that matters raised for first time on appeal are not to be considered).

            Affirmed. 



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