This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (2004).
IN COURT OF APPEALS
Kristopher Joseph Sabas,
Filed March 28, 2006
Hennepin County District Court
File No. 04077437
Mike Hatch, Attorney General, 1800 Bremer Tower, 445 Minnesota Street, St. Paul, MN 55101; and
Paul D. Baertschi, Tallen & Baertschi, 4560 IDS Center, 80 South Eighth Street, Minneapolis, MN 55402 (for respondent)
Stephen V. Grigsby,
Considered and decided by Dietzen, Presiding Judge; Wright, Judge, and Worke, Judge.
U N P U B L I S H E D O P I N I O N
On appeal from a conviction for fourth-degree DWI, appellant argues that the district court abused its discretion and denied appellant’s right to confrontation by admitting Intoxilyzer results, which depend on the accuracy of the simulator solution, without reference to any exception to the hearsay rule. We affirm.
D E C I S I O N
rulings rest within the sound discretion of the [district] court and will not
be reversed absent a clear abuse of discretion.
On appeal, the appellant has the burden of establishing that the
[district] court abused its discretion and that appellant was thereby
prejudiced.” State v. Amos, 658 N.W.2d 201, 203 (
“The proponent of a chemical or
scientific test must establish that the test itself is reliable and that its
administration in the particular instance conformed to the procedure necessary
to ensure reliability.” State v. Dille, 258 N.W.2d 565, 567 (
Here, the officer testified that he received week-long training on the Intoxilyzer 5000 from the Minnesota Bureau of Criminal Apprehension (BCA) and received a certificate of completion. The officer also testified that the particular machine used to test appellant’s breath was in working order, reliable, and accurate. The officer then testified that someone at the BCA tests the simulator solution to deem it to be of a certain alcohol concentration. Appellant objected, arguing that the test results were inadmissible because the officer did not have personal knowledge of the simulator solution. The officer testified that the solution is tested at the BCA for known alcohol concentration, placed in bottles, labeled to indicate the control group from which the solution was drawn, packaged, sealed, and delivered to police departments. The district court overruled appellant’s objection, ruling that the state’s burden did not require presentation of expert testimony on the reliability of the breath-testing method or the reliability of the Intoxilyzer-test method. The district court further ruled that the statutory requirements had been met because the officer was properly trained and testified that the Intoxilyzer was functioning properly and performed all of the necessary calibrations to provide an accurate reading.
has not provided a reason why the test was untrustworthy; therefore, the
district court did not abuse its discretion in admitting the test results because
the officer’s testimony demonstrated that the Intoxilyzer test was performed by
a trained person. See Ahrens, 396 N.W.2d at 655-56 (stating that a prima facie
showing of trustworthy administration of an Intoxilyzer is established by
demonstrating that the test was performed by a properly trained person, it is
then incumbent on the opponent to suggest a reason why the test was
untrustworthy). Further, the officer testified that the solution is received from
the BCA in sealed bottles. In Dille, the defendant argued that the district court erred
in admitting blood-test results because no proper foundation was laid with
respect to the test’s reliability. Dille, 258 N.W.2d at 567. The supreme court held that “the fact that
the bottle and its contents were furnished as a blood-testing kit by the [BCA] provided
a sufficient indicium of reliability to establish the prima facie admissibility
of the test results.”
argues that his constitutional right to confrontation was violated. In State v. Jensen, 351 N.W.2d 29,
32-33 (Minn. App. 1984), this court concluded that business records
establishing that a breathalyzer test was working properly did not pose a
confrontation problem because they were “merely collateral evidence of the
reliability of the breathalyzer test.” A
similar situation exists here. Further,
in State v. Birk, 687 N.W.2d 634, 637
(Minn. App. 2004), the state did not present expert testimony on the
reliability of the method used by the Intoxilyzer in measuring the amount of
alcohol in the defendant’s breath. The
defendant argued that without expert testimony, the jury could have found the
test method reliable only by presuming that a test used by police must be
reliable. Birk, 687 N.W.2d at 637.
This court noted that the Intoxilyzer correctly measured the room air
sample and measured the defendant’s two breath samples at nearly the same
Here, the arresting officer observed appellant driving in a “weaving” pattern and over a curb. While speaking with appellant, the officer detected a strong odor of an alcoholic beverage coming from him and noticed that appellant’s eyes were bloodshot and glassy. Appellant was uncooperative during field sobriety tests and told the officer that he had a good lawyer and did not need to take any of the tests, which were discontinued. Although appellant denied consuming any alcoholic beverage, he agreed to take a preliminary breath test which registered a .137 on the digital Alco-sensor. Additionally, the Intoxilyzer measured appellant’s two breath samples at the same alcohol concentration (.142). All of this information tended to support the reliability of the Intoxilyzer results. Thus, the district court’s admission of the test results did not violate the Confrontation Clause.