This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (2004).







State of Minnesota,





Lyle Ryan Foy,



Filed April 19, 2005


Willis, Judge


Hennepin County District Court

File No. 03066715



Mike Hatch, Attorney General, 1800 NCL Tower, 445 Minnesota Street, St. Paul, MN  55101-2134; and


Ryan J. Wood, Thomsen & Nybeck, P.A., 3300 Edinborough Way, Suite 600, Edina, MN  55435 (for respondent)


Stephen V. Grigsby, 2915 Wayzata Boulevard South, Suite 101, Minneapolis, MN  55405 (for appellant)


            Considered and decided by Willis, Presiding Judge; Stoneburner, Judge; and Poritsky, Judge.*

U N P U B L I S H E D   O P I N I O N


            Appellant challenges his fourth-degree driving-while-impaired conviction, arguing that the admission of the Intoxilyzer results violated his due-process rights and that the record is insufficient to support the conviction.  Because we find that the district court properly admitted the Intoxilyzer results and that the record supports the conviction, we affirm.


            The facts in this case are undisputed.  On September 10, 2003, Sergeant Nelson of the Edina Police Department observed a vehicle driven by appellant Lyle Ryan Foy drifting across the lanes on Highway 62.  Officer Nelson stopped Foy, asked him if he had consumed any alcohol, and performed a field sobriety test.  Officer Nelson observed “several indicators of impairment,” arrested Foy, and took him to the Edina Police Station. 

Officer Nelson read Foy the implied-consent advisory and asked him to take an Intoxilyzer test.  Officer Nelson is a certified Intoxilyzer operator, having received training from the Bureau of Criminal Apprehension (BCA).  Foy agreed to take a breath test, and Officer Nelson started the 15-minute observation period, which is necessary to prevent mouth alcohol from rendering the test invalid.  At the end of the observation period, Foy informed Officer Nelson that he had burped.  As instructed in his BCA training, Officer Nelson reset the Intoxilyzer and started another 15-minute observation period.  During this second attempt, Foy gave an adequate first sample but burped again before he could provide a second sample.  Officer Nelson began another 15-minute observation period, after which Foy provided two adequate breath samples.  The Intoxilyzer registered an alcohol concentration of .16.

Officer Nelson revoked Foy’s license, and Foy was charged with fourth-degree driving while impaired, in violation of Minn. Stat. §§ 169A.20, subds. 1(1), (5), .27, subd. 1 (2002), and an open-bottle violation, in violation of Minn. Stat. § 169A.35 (2002).  At his Rasmussen hearing, Foy moved to suppress the Intoxilyzer results, but the district court denied his motion.  A trial was held on stipulated facts, and Foy again challenged the admissibility of the Intoxilyzer results.  The district court rejected Foy’s challenge and found him guilty of fourth-degree driving while under the influence of alcohol, fourth-degree driving with an alcohol concentration of .10 or more, and the open-bottle violation.  The district court form describing the terms and conditions of the sentence shows the charge against Foy to be fourth-degree driving while impaired, and the district court imposed a sentence of 30 days in the workhouse and a $500 fine.  The district court gave Foy one day of jail credit, allowed him to perform eight hours of community service in lieu of another day of jail time, and stayed the remaining 28 days for two years.  This appeal follows.


            Foy first challenges the admission of the Intoxilyzer results.  In a challenge to a pretrial order on a motion to suppress evidence, we “independently review the facts and determine, as a matter of law, whether the district court erred in suppressing—or not suppressing—the evidence.”  State v. Harris, 590 N.W.2d 90, 98 (Minn. 1999). 

            Foy argues that the administration of the Intoxilyzer test violated his due-process rights.  He contends that Officer Nelson improperly exercised his own discretion when he restarted the breath test.  Foy asserts that an officer has no discretion when administering a breath test because the machine determines the adequacy of the breath sample, thereby removing operator discretion and ensuring a fair, objective result as required by due process.  Foy argues that because the Intoxilyzer did not detect an inadequate breath sample, Officer Nelson had no discretion to restart the test.  Foy relies on a series of cases that observe that the Intoxilyzer’s ability to determine the adequacy of breath samples removes officer discretion from the testing procedure and guarantees the defendant’s due-process rights.  See, e.g., Johnson v. Comm’r of Pub. Safety, 400 N.W.2d 195, 198 (Minn. App. 1987) (holding that an administering officer does not have discretion to terminate a breath test because the officer believes that the driver’s “verbally abusive and belligerent” behavior constitutes a refusal to submit to the test), review denied (Minn. April 17, 1987); Huber v. Comm’r of Pub. Safety, 382 N.W.2d 573, 575 (Minn. App. 1986) (holding that an administering officer does not have discretion to terminate a breath test because the officer believes that the driver is “playing games”).  The reason why removal of officer discretion guarantees due-process rights is that the “officer’s subjective opinion that a driver constructively refused the test” is not relied upon for the revocation of the driver’s license.  Johnson, 400 N.W.2d at 199.  Here, Officer Nelson revoked Foy’s license not for refusal to take the breath test but for having an alcohol concentration of .16. 

            In State v. Coleman, we held that an administrating officer has “discretion to terminate a breath test due to concerns with mouth alcohol,” even when the machine does not indicate the presence of mouth alcohol.  686 N.W.2d 325, 329 (Minn. App. 2004).  The facts in Coleman are almost identical facts with the facts here.  In Coleman, the defendant burped after providing the first breath sample but before the giving the second.  Id. at 327.  The officer administering the test restarted the 15-minute observation period, and the defendant burped again.  Id.  The officer then asked the defendant to submit to a blood test, and the defendant agreed to do so.  Id.  The defendant argued that the administering officer violated the defendant’s due-process rights by restarting and eventually ending the breath-test altogether, but we held that the officer acted within his discretion because his conduct was “in accordance with the BCA recommendations.”  Id. at 326–27, 329. 

            Here, Officer Nelson followed BCA procedure and restarted the observation period after Foy burped.  Because Officer Nelson acted within his discretion as described in Coleman, we conclude that Foy’s due-process rights were not violated during the administration of the Intoxilyzer test and that the district court did not err by admitting the breath-test results.

            Foy next argues that the record is insufficient to support his conviction of fourth-degree driving while impaired.  His argument is based on the claim that the state did not prove the reliability of the breath test beyond a reasonable doubt.  Foy claims this additional element of the crime comes from 10A Minnesota Practice, CRIMJIG 29.10, .12 (1999).  But jury instruction guides are not statements of the law, and “[t]he content of these guides does not control over statutory or case law.”  State v. Peterson,673 N.W.2d 482, 484 n.1 (Minn. 2004).  The reliability of the breath test is an evidentiary issue.  See Minn. Stat. § 634.16 (2002) (allowing for the admission of infrared breath-test results “without antecedent expert testimony” if the test is performed “by a person who has been fully trained in the use of an infrared breath-testing instrument”).

            When an appellant challenges the sufficiency of the evidence, we review the record in a light most favorable to the verdict.  Davis v. State, 595 N.W.2d 520, 525 (Minn. 1999).  We determine “whether the facts in the record and the legitimate inferences drawn from them would permit the jury to reasonably conclude that the defendant was guilty beyond a reasonable doubt of the offense of which he was convicted.”  Id.(quotation omitted).  “We review criminal bench trials the same as jury trials when determining whether the evidence is sufficient to sustain convictions.”  Id.(quotation omitted).

            The district court found Foy guilty of fourth-degree driving while under the influence of alcohol and fourth-degree driving with an alcohol concentration of .10 or more.  “It is a crime for any person to drive, operate, or be in physical control of any motor vehicle within this state or on any boundary water of this state . . . when the person is under the influence of alcohol” or “when the person’s alcohol concentration at the time, or as measured within two hours of the time, of driving, operating, or being in physical control of the motor vehicle is 0.10 or more.”  Minn. Stat. § 169A.20, subds. 1(1), (5) (2002).

            Foy stipulated to Officer Nelson’s police report, which included a detailed description of Foy’s driving and his performance during the field sobriety test.  He also stipulated to the Intoxilyzer results, which reported that Foy had an alcohol concentration of .16 within two hours after being stopped by Officer Nelson.  The stipulated facts support the guilty judgment, and we conclude that the record contains sufficient evidence to permit a jury to find Foy guilty of fourth-degree driving while impaired.


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