This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat.  480A.08, subd. 3 (1994).

STATE OF MINNESOTA

IN COURT OF APPEALS

C4-95-2354

Alex Castillo Deleon, petitioner,

Appellant,

vs.

Commissioner of Public Safety,

Respondent.

Filed June 4, 1996

Affirmed

Willis, Judge

Polk County District Court

File No. C1951267

John A. Winters, 107 West Second Street, Crookston, MN 56716 (for Appellant)

Hubert H. Humphrey, III, Attorney General, Jeffrey S. Bilcik, Assistant Attorney General, 525 Park Street, Suite 500, St. Paul, MN 55103 (for Respondent)

Considered and decided by Toussaint, Chief Judge, Klaphake, Judge, and Willis, Judge.

U N P U B L I S H E D O P I N I O N

WILLIS, Judge

The Commissioner of Public Safety revoked Alex Deleon's driver's license based on his refusal to submit to alcohol concentration testing. Deleon petitioned for judicial review, and after a hearing the trial court sustained the revocation. Deleon moved for amended findings of fact and conclusions of law or, in the alternative, a new trial. The trial court denied the motion. We affirm.

FACTS

Officer William Boutwell and intern Bradley Johnson were on routine patrol when Boutwell stopped appellant Alex Deleon for speeding. When Deleon failed a preliminary breath test (PBT) and performed poorly on other field sobriety tests, Boutwell arrested him for driving while under the influence of alcohol. After consulting with an attorney, Deleon agreed to take a breath test. He did not provide an adequate breath sample, and his driver's license was revoked for refusal. He petitioned for judicial review.

At the hearing, Deleon asserted he could not provide an adequate breath sample because the blowing caused pain from a pre-existing shoulder injury. The officer and the intern testified they believed Deleon was blocking the mouthpiece with his tongue, and although Deleon did complain about his shoulder pain, they saw no apparent problem with his breathing. The intern also testified that Deleon said he was not having difficulty breathing.

Deleon sought to introduce documents from his doctor describing his medical condition, authenticated by a statement signed by his attorney's legal assistant that they represented true and accurate documents held "at this facility." The trial court refused to admit the documents into evidence, stating that they were irrelevant because they contained nothing indicating the injury would cause difficulty providing a breath sample. The trial court sustained the revocation, finding that Deleon failed to prove that his inability to provide a breath sample was the result of his shoulder pain.

Deleon moved for amended findings and a new trial, arguing that the trial court should have found he was unable to blow into the Intoxilyzer because of pain and that the letters and reports from his doctor should have been received into evidence. The trial court again reviewed the medical records and concluded they were not properly authenticated and therefore were not admissible. Further, the court indicated that even if it admitted the records into evidence, the records did not show that pain interfered with Deleon's ability to blow into the Intoxilyzer, noting that he had been able to blow into the PBT. The trial court denied the motion in an order dated October 5, 1995, and this appeal followed.

This court questioned jurisdiction, because the trial court's order referred only to the motion for amended findings. This court found it apparent that Deleon had made a motion for a new trial; found the October 5, 1995, order appealable, because it in effect denied a motion for a new trial; and deferred to the panel deciding the appeal on the merits the issue of whether Deleon's new trial motion adequately preserved the issues he raises on appeal.

D E C I S I O N

Review of the motion for a new trial shows Deleon explicitly raised the issues of whether his alleged physical inability to provide a breath sample made his refusal reasonable and whether the trial court improperly refused to admit the medical reports. Therefore, those issues are properly before us. See Stockdale Bancorporation v. Kjellberg, 479 N.W.2d 438, 439 (Minn. App. 1992) (new trial motion must explicitly state basis under Minn. R. Civ. P. 59.01 for new trial and identify specific errors to preserve issues for appellate review).

I.

Failure to provide two separate, adequate breath samples for an Intoxilyzer test is a refusal, unless the person is physically unable to provide a sample. Minn. Stat.  169.123, subd. 2b(c) (1994); see Minn. R. 7502.0430, subpt. 1 (1995); see Aunan v. Commissioner of Pub. Safety, 361 N.W.2d 907, 908-09 (Minn. App. 1985). If an officer determines that a driver who provided an inadequate sample was physically able to provide a sample, and the driver's license is revoked for refusal, the driver may challenge the determination at the implied consent hearing. Carlson v. Commissioner of Pub. Safety, 374 N.W.2d 791, 794 (Minn. App. 1985). The driver must prove the refusal was reasonable because of the driver's physical condition. See Benson v. Commissioner of Pub. Safety, 397 N.W.2d 452, 453 (Minn. App. 1986). The issue of physical inability is a question of fact, and the trial court's findings will not be reversed unless clearly erroneous. Burke v. Commissioner of Pub. Safety, 381 N.W.2d 903, 904 (Minn. App. 1986).

Deleon argues that the trial court imposed an unreasonable standard when it required him to prove that he was physically unable to blow into the Intoxilyzer and contends that his subjective report of pain should be considered. The trial court specifically rejected Deleon's claim that his pain prevented him from providing an adequate breath sample. Cf. id. at 905 (relying on physician's testimony explaining why medical condition could cause difficulty providing a breath sample). The trial court's conclusion was based on its assessment of conflicting evidence, and there is no basis for this court to determine that the trial court's conclusion was clearly erroneous.

II.

Deleon also challenges the trial court's determination that the medical records offered as exhibit 3 were inadmissible because they were not properly authenticated. He contends that the disputed records should have been admissible pursuant to Minn. Stat. 169.123, subd. 6 (1994), which provides in relevant part:

Certified or otherwise authenticated copies of laboratory or medical personnel reports, records, documents, licenses and certificates shall be admissible as substantive evidence.

We decline to hold that under this section a legal assistant may attest to the authenticity of medical records. Further, the trial court found that even if the documents were admitted, they do not support Deleon's claim.

Affirmed.