This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. sec. 480A.08, subd. 3 (1994).

Troy John Damyanovich,


State of Minnesota,

Minnesota Court of Appeals #C0-95-1704
Itasca County District Court #T2-95-1268

May 7, 1996

Steven A. Peterson, Thomas L. Iliff, One Paramount Plaza, Suite 260, 7801 East Bush Lake Road, Bloomington, MN 55439 (for appellant)

Hubert H. Humphrey, III, Minnesota Attorney General, 1400 NCL Tower, 445 Minnesota Street, St. Paul, MN 55101; John J. Muhar, Itasca County Attorney, W. James Mason, Assistant County Attorney, 123 Northeast Fourth Street, Grand Rapids, MN 55744 (for respondent)

Considered and decided by Parker, Presiding Judge, Schumacher, Judge, and Mansur,* Judge.

U N P U B L I S H E D   O P I N I O N


This appeal is from a judgment of conviction for misdemeanor DWI under Minn. Stat. § 169.121, subd. 1(d) (1994). Appellant Troy Damyanovich argues that the trial court abused its discretion in admitting preliminary breath test (PBT) evidence and that double jeopardy bars any criminal sentence. We affirm.


Police saw someone in Damyanovich's car drive past them, turn into a driveway, and immediately turn off the headlights. Two officers walked up to the car and found it occupied by Damyanovich and a friend, "Nubby" Chellico. Damyanovich was in the driver's seat, and Chellico was in the front passenger's seat.

The trial court denied Damyanovich's motion to dismiss the complaint as barred by double jeopardy because Damyanovich's license had been revoked under the implied consent law.

At trial, Chellico testified that he, not Damyanovich, had been driving the car. Chellico testified that police had also arrested him for DWI, but he denied being given any tests. Later, when the prosecutor asked whether the officers had tested him for alcohol, Chellico stated, "They gave me a breathalyzer." When the prosecutor asked what the results were, defense counsel objected. The trial court overruled the objection, and Chellico testified that his PBT showed a .12 alcohol concentration.



Damyanovich argues that the trial court committed reversible error in allowing the state to elicit evidence on cross-examination that Nubby Chellico took and failed a PBT, with a reading of .12.

Rulings on evidentiary matters rest within the sound discretion of the trial court. Caldwell v. State, 347 N.W.2d 824, 826 (Minn. App. 1984). The manner and scope of cross-examination rest within the discretion of the trial court and will not be reversed absent an abuse of discretion. State v. Langley, 354 N.W.2d 389, 401 (Minn. 1984).

Defense counsel elicited from Chellico on direct examination that Chellico was placed under arrest for DWI, but was not given a ticket and was allowed to go home. This questioning appears to have been directed at establishing that police had grounds to believe Chellico might have been the driver, but that they did not adequately investigate which man was driving. The defense may also have been trying to imply that Chellico was the more likely driver because he was sober, which the jury could have inferred if the PBT test result was excluded.

Chellico testified on cross-examination that he was arrested for DWI, but wasn't given any tests. This answer was properly impeached by evidence of the PBT testing. The trial court also acted within its discretion when it allowed the follow-up question on the results of the test, given the inferences the defense was trying to create.

Damyanovich argues that admission of the PBT results violated Minn. Stat. § 169.121, subd. 6 (1994). Arguably, that statute was intended to prevent the less-reliable PBT from being admitted to prove the defendant's alcohol concentration, not to preclude the use of a witness's PBT. Moreover, we note that statutory rules of evidence are enforced as a matter of comity and interpreted consistently with the Minnesota Rules of Evidence. State v. Burns, 394 N.W.2d 495, 498 (Minn. 1986). Even if the statute were construed as applying to a witness's PBT, it would not necessarily be enforced to exclude proper impeachment of a witness.


Damyanovich argues that his implied consent revocation constituted "punishment" for purposes of the Double Jeopardy Clause, barring any criminal sentence. He states in his brief that his license was revoked for 90 days. The supreme court has held, in a case in which 90-day revocations were at issue, that an implied consent driver's license revocation does not constitute "punishment" for purposes of the Double Jeopardy Clause. State v. Hanson, 543 N.W.2d 84, 89-90 (Minn. 1996).



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