This opinion will be unpublished and

may not be cited except as provided by

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

 

 

STATE OF MINNESOTA

IN COURT OF APPEALS

C4-03-182

 

Anthony Carl Ramirez, petitioner,

Appellant,

 

vs.

 

Commissioner of Public Safety,

Respondent.

 

Filed October 14, 2003

Affirmed

Willis, Judge

 

Cass County District Court

File No. C9011441

 

 

Rich Kenly, P.O. Box 31, Backus, MN† 56435 (for appellant)

 

Mike Hatch, Attorney General, Joel A. Watne, Assistant Attorney General, 1800 NCL Tower, 445 Minnesota Street, St. Paul, MN† 55101-2131 (for respondent)

 

††††††††††† Considered and decided by Willis, Presiding Judge; Shumaker, Judge; and Stoneburner, Judge.

U N P U B L I S H E D†† O P I N I O N

WILLIS, Judge

Appealing from the denial of his petition for rescission of the revocation of his driverís license, Anthony Carl Ramirez argues that the district court erred by concluding that he failed to meet his burden of demonstrating that his Intoxilyzer test results were unreliable.† Because the commissioner established a prima facie case of the testís reliability and because Ramirez failed to rebut the commissionerís showing of reliability, we affirm.

FACTS

††††††††††† On December 2, 2001, Minnesota State Trooper Dion Pederson stopped appellant Anthony Carl Ramirez for speeding.† Trooper Pederson noticed an odor of alcohol emanating from Ramirezís car and that Ramirez had slurred speech, bloodshot eyes, and a flushed face.† The trooper also noticed that Ramirezís balance was impaired and that he had difficulty getting his driverís license out of his wallet.† Ramirez admitted to having consumed alcoholic beverages earlier in the day.† A horizontal-gaze nystagmus test indicated that Ramirez was intoxicated, and a portable breath test showed Ramirezís alcohol concentration to be 0.119.† Trooper Pederson arrested Ramirez for driving while under the influence of alcohol.

††††††††††† Trooper Pederson transported Ramirez to the Cass County Law Enforcement Center, where he gave Ramirez the implied-consent advisory.† Ramirez agreed to take a breath test, which showed that he had an alcohol concentration of 0.11.† The Commissioner of Public Safety subsequently revoked Ramirezís driverís license.

††††††††††† Ramirez petitioned for rescission of the revocation of his driverís license on the ground that the breath-test results were unreliable.† The district court denied Ramirezís petition, and this appeal follows.


D E C I S I O N

††††††††††† Ramirez argues that the district court erred by concluding that the breathtest administered to him was reliable.† He claims that he rebutted the commissionerís prima facie case of the testís reliability by producing evidence that the Intoxilyzer 5000 unit used in his test had recorded calibration tests outside of acceptable limits on seven occasions before his test and again the day after his test, that generally accepted scientific standards require that under these circumstances a unit be removed from service, and that a test using such an unreliable unit should not be used as a basis for revoking his driverís license.

††††††††††† The party offering the results of an Intoxilyzer testinto evidence has the burden of establishing a prima facie case that the test is reliable by showing that the administration of the test conformed to the procedure necessary to ensure reliability.† State v. Dille, 258 N.W.2d 565, 567 (Minn. 1977).† When a prima facie case is established, the burden shifts to a party challenging the test to demonstrate why the test is unreliable.† Id. at 568.† The party challenging the reliability of a test must provide more than speculation to demonstrate unreliability.† Roettger v. Commír of Pub. Safety, 633 N.W.2d 70, 74 (Minn. App. 2001).† We will defer to the district courtís assessment of the weight and credibility of expert testimony.† Minn. R. Civ. P. 52.01; Frost v. Commír of Pub. Safety, 348 N.W.2d 803, 804 (Minn. App. 1984).† But we review de novo a district courtís burden-of-proof determinations.† Genung v. Commír of Pub. Safety, 589 N.W.2d 311, 313 (Minn. App. 1999), review denied (Minn. May 18, 1999).

††††††††††† Ramirezís expert, Thomas Burr, testified that the Intoxilyzer used in Ramirezís test was unreliable because of the number of times it failed to calibrate within an acceptable range and that generally accepted scientific standards require that such a unit be removed from service as unreliable.† But Burr found nothing to indicate that the Intoxilyzer was not operating correctly when the breath test was administered to Ramirez.† The commissionerís expert testified that Ramirezís test record showed nothing that would suggest that his test was unreliable.† She also testified that on each occasion that the unit produced a calibration result that was out of range, the unit reacted as it should by shutting down.† It is uncontested that when Ramirez took the breath test the unit produced the expected calibration result and did not shut down.

The Minnesota Supreme Court has stated that where, as here, a breath-test unitís room-air test and simulator-solution test, which are procedures to ensure reliability, give the expected results, the commissionerís evidence constitutes ďalmost incontrovertible proofĒ that ďthe instrument [was] in working order.Ē† Depít of Pub. Safety v. Habisch, 313 N.W.2d 13, 16 (Minn. 1981) (quotation omitted) (analyzing reliability of a Breathalyzer unit); see also Schultz v. Commír of Pub. Safety, 393 N.W.2d 373, 375 (Minn. App. 1986) (applying similar analysis for reliability of an Intoxilyzer unit).† The district court found that appropriate procedures were followed in administering Ramirezís test, that all indicia of reliability of the Intoxilyzer were present, and, therefore, that the Intoxilyzer test administered to Ramirez was reliable.† Because the district courtís determination that the test was reliable is supported by the record, and because Ramirezís evidence challenging the test results is merely speculative, the district court did not err by concluding that Ramirez failed to meet his burden of demonstrating that the Intoxilyzer test results were unreliable.

††††††††††† Affirmed.

†††††††††††