This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (2002).






Richard Allen Kay,






Commissioner of Public Safety,



Filed September 2, 2003

Klaphake, Judge


Dakota County District Court

File No. CX0115189


Robert M. Christensen, Barrister Trust Building, 247 Third Avenue South, Minneapolis, MN  55415 (for appellant)


Mike Hatch, Attorney General, Sean R. McCarthy, Assistant Attorney General, 1800 NCL Tower, 445 Minnesota Street, St. Paul, MN  55101-2134  (for respondent)


            Considered and decided by Klaphake, Presiding Judge, Peterson, Judge, and Minge, Judge.

U N P U B L I S H E D   O P I N I O N


            Appellant Richard Allen Kay challenges the district court’s order sustaining the revocation of his driver’s license for operating a motor vehicle with an alcohol concentration of 0.10 or more.  Minn. Stat. §§ 169A.51-.53 (2002).  Appellant argues that the difference of .027 between his first and second breath samples rendered the testing method invalid and unreliable.  He further argues that his due process rights were violated because he did not receive a fair and reliable test.

            Because the commissioner established a prima facie case that the test results were valid and reliable and because the district court did not clearly err in rejecting the opinion of appellant’s expert witness to the contrary, we affirm the order sustaining revocation of appellant’s driver’s license.



            The proponent of a chemical test must lay sufficient foundation to establish that the test is reliable and that the test administration conformed to the procedures necessary to insure reliability.  See State v. Dille, 258 N.W.2d 565, 567 (Minn. 1977).  A prima facie case is established by showing that a certified Intoxilyzer operator conducted the test and that the instrument was operating properly.  See State, Dep’t of Pub. Safety v. Habisch, 313 N.W.2d 13, 15 (Minn. 1981); Zern v. Comm’r of Pub. Safety, 371 N.W.2d 82, 83 (Minn. App. 1985).

            Here, the commissioner met his burden.  The officer who administered the test is a certified Intoxilyzer operator.  He testified that the machine was functioning properly and that it accepted the two breath samples provided by appellant.  The first sample registered an alcohol concentration of .183 and the second registered .156.  The final report stated that appellant’s alcohol concentration was .15.  The operator further testified that he observed appellant provide a larger volume of air during the first breath sample, an observation confirmed by the Intoxilyzer, which indicated that appellant provided 3.24 liters of air during his first sample and only 2.64 liters during his second.

            The commissioner also offered the testimony of the arresting officer, who stated that he monitored appellant for 16 minutes prior to administration of the test and that he did not observe any conduct on appellant’s part that would contaminate the test, such as appellant placing anything in his mouth, belching, burping, or vomiting.  Finally, the commissioner offered the testimony of an expert with the BCA, who opined that the .15 test result was accurate and that the difference in breath volume was the most likely explanation for the disparity between the alcohol concentrations of the two samples, not the presence of mouth alcohol, which would have been detected by the Intoxilyzer or during the observation period.

            The burden then shifted to appellant, as the party challenging the admissibility of the test results, to present affirmative evidence of an occurrence that actually affected the validity of the test.  See Hager v. Comm’r of Pub. Safety, 382 N.W.2d 907, 909 (Minn. App. 1986) (test results valid where driver failed to present evidence regarding effect of chewing gum on 88% comparison); Bielejeski v. Comm’r of Pub. Safety, 351 N.W.2d 664, 666 (Minn. App. 1984) (test results valid where driver presented no evidence and only “an invitation to speculation”).  Appellant presented his expert’s opinion that the difference of .027 between appellant’s two breath samples did not conform to national scientific standards and that the difference was caused by the presence of mouth alcohol, which contaminated the test and mandated additional testing.  Appellant’s expert based his opinion partly on a 1990 scientific article in which the author stated that when a first sample is higher than a second by more than .125, “a mouth alcohol effect might be present.”  (Emphasis added.)  On cross examination, however, appellant’s expert conceded that the Intoxilyzer here did not detect mouth alcohol and that one of the best controls to avoid mouth alcohol contamination is to conduct a 15 to 20 minute observation period prior to testing, which was done here.

            The district court rejected the opinion of appellant’s expert regarding the source of the difference between the two samples and his theory that mouth alcohol played a role as speculative and unsupported by the evidence.  The court was free to do so, particularly when appellant’s expert merely offered a possible explanation for the difference between the two test results, and where other evidence presented by the commissioner in the form of the BCA expert and the Intoxilyzer operator offered an alternative, more plausible explanation for the difference.  See Minn. R. Civ. P. 52.01 (district court free to judge the credibility of witnesses and its findings will not be reversed unless clearly erroneous); Wells v. Comm’r of Pub. Safety, 392 N.W.2d 721, 724 (Minn. App. 1986) (reversing district court’s acceptance of expert’s “possible explanation” for low correlation because that explanation failed to “rise to the level of facts which impugn the validity of the test”).

            Finally, as the commissioner correctly notes, appellant’s characterization of the difference between the first and second breath samples as a numerical value, .027, is just another way of calculating the “sample comparison” or “breath correlation,” which is often stated as a percentage value.  In this case, that correlation would be stated as 85%.  Thus, appellant’s case is not unique, but merely a typical sample comparison case presented under a different label.  Minnesota courts have held that breath samples need not agree within a certain minimum standard in order for the test to be valid and reliable.  See, e.g., Young v. Comm’r of Pub. Safety, 420 N.W.2d 585, 587 (Minn. 1988) (holding that correlation of 88% between results did not invalidate testing method); Wells, 392 N.W.2d at 724; Schwarzrock v. Comm’r of Pub. Safety, 388 N.W.2d 425, 426 (Minn. App. 1986); Daley v. Comm’r of Pub. Safety, 384 N.W.2d 536, 539 (Minn. App. 1986); Hager, 382 N.W.2d at 910.


            Appellant argues that the testing methods utilized by the commissioner violate his due process rights.  He concedes that he did not expressly raise this argument at the implied consent hearing, but asserts that the issue of the validity of the breath test is “intrinsically tied to due process.”  He asserts that this issue should be addressed in the interests of justice.  See Minn. R. Civ. App. P. 103.04.

            Appellant’s failure to raise this issue below effectively prevented the development of a record that might allow us to adequately address his due process concerns.  See Weierke v. Comm’r of Pub. Safety, 578 N.W.2d 815, 816 (Minn. App. 1998) (refusing to review constitutional challenge that was not raised during revocation hearing).  Because appellant’s due process claim was not litigated or adequately briefed, we decline to address it now on appeal.  See State v. Sorenson, 441 N.W.2d 455, 457 (Minn. 1989) (stating that court declines to address constitutional issue that was “neither adequately briefed nor litigated”).

            The district court’s order sustaining the revocation of appellant’s driver’s license is affirmed.