This opinion will be unpublished and

may not be cited except as provided by

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

 

STATE OF MINNESOTA

IN COURT OF APPEALS

A03-2031

 

Gregory Gene Geiger, petitioner,

Respondent,

 

vs.

 

Commissioner of Public Safety,

Appellant.

 

Filed July 6, 2004

Reversed

Kalitowski, Judge

 

Hennepin County District Court

File No. IC 482 848

 

Peter J. Timmons, 2000 Wells Fargo Plaza, 7900 Xerxes Avenue South, Minneapolis, MN 55431 (for respondent)

 

Mike Hatch, Attorney General, Allen Louie, Assistant Attorney General, 1800 NCL Tower, 445 Minnesota Street, St. Paul, MN 55101-2134 (for appellant)

 

            Considered and decided by Kalitowski, Presiding Judge; Wright, Judge; and Forsberg, Judge.*


U N P U B L I S H E D   O P I N I O N

KALITOWSKI, Judge

            Appellant Commissioner of Public Safety challenges the district court’s decision to rescind the revocation of respondent’s driving privileges, arguing that the district court erred in suppressing the test results on the ground that the Intoxilyzer observation period was insufficient.  We reverse.

D E C I S I O N

            “Findings of fact, whether based on oral or documentary evidence, shall not be set aside unless clearly erroneous, and due regard shall be given to the opportunity of the trial court to judge the credibility of the witnesses.”  Minn. R. Civ. P. 52.01.  “Findings of fact are clearly erroneous only if the reviewing court is left with the definite and firm conviction that a mistake has been made.”  Fletcher v. St. Paul Pioneer Press, 589 N.W.2d 96, 101 (Minn. 1999) (quotation omitted).  The appellate court views the evidence in the light most favorable to the factual findings and assumes the factfinder believed the state’s witnesses and disbelieved contrary evidence.  State v. Atkins, 543 N.W.2d 642, 646 (Minn. 1996).

            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.  State v. Dille, 258 N.W.2d 565, 567 (Minn. 1977).  A prima facie case of reliability is established by showing that a certified Intoxilyzer operator conducted the testing and that the instrument was operating properly.  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).  After the commissioner proves that the Intoxilyzer test result is prima facie reliable, the burden falls on the opponent to show why the test is untrustworthy.  Dille, 258 N.W.2d at 567-68.  In order to show that the test results are untrustworthy, a person must provide more than speculation.  Roettger v. Comm’r of Pub. Safety, 633 N.W.2d 70, 74 (Minn. App. 2001).

            Here, the district court rescinded the revocation of respondent’s driver’s license after finding that there was not a full 15 minutes of observation.  The court’s oral findings stated that the observation time began at 1:59 a.m. and the first breath sample was given at 2:11 a.m.  Thus, the district court found there was only a 12-minute observation period.  While the evidence is conflicting, we cannot say the district court’s findings are clearly erroneous.  The record indicates that the implied consent advisory was completed at 1:59 a.m. and the report generated by the Intoxilyzer indicated that the first breath sample was given at 2:11 a.m.  Therefore, viewing the evidence in the light most favorable to the factual findings, the district court’s findings regarding the observation period are not clearly erroneous.

            But we conclude that even if the district court correctly found the observation period was less than 15 minutes, the district court erred in rescinding respondent’s license revocation.  On appeal, respondent argues that the district court “must have concluded that there was no foundation for the test and rescinded the revocation because it was based on the test” and therefore, the district court did not find the test prima facie reliable.  But an Intoxilyzer is prima facie reliable when it is shown that a certified operator administered the test and the instrument was working properly.  And it is not argued here that the administrating officer was not a certified operator or that the Intoxilyzer was not working properly.  Moreover, this court has held that “an alleged deficiency in the observation period goes solely to the weight to be given to the test by the trier of fact, and does not preclude the admissibility of the test results.”  State v. Wickern, 411 N.W.2d 597, 599 (Minn. App. 1987).  Because appellant proved that the Intoxilyzer test was prima facie reliable, respondent had the burden to show why the test was untrustworthy.  

            Respondent argues that the test was untrustworthy because the observation period did not last for 15 minutes.  Respondent made no other arguments and offered no other evidence to prove why the Intoxilyzer results may be inaccurate.  But in Johnson v. Comm’r of Pub. Safety, this court held the district court erred in rescinding the revocation based solely on a finding that the observation period was less than 15 minutes.  392 N.W.2d 359, 363 (Minn. App. 1986); see Melin v. Comm’r of Pub. Safety, 384 N.W.2d 474, 477 (Minn. App. 1986) (holding that the district court erred in requiring a showing of a 15-minute period of continuous observation and that respondent failed to rebut the prima facie showing of reliability); Wickern, 411 N.W.2d at 599 (holding that the district court erred in suppressing Intoxilyzer results based solely on a deficiency in the observation period).

            We conclude that the record indicates that the Intoxilyzer test results were prima facie reliable, respondent failed to show why the results were untrustworthy, and the district court erred in rescinding the revocation based on its finding that the observation period was less than 15 minutes.

            Reversed.



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