This opinion will be unpublished and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
CX-96-862

State of Minnesota,
Appellant,

vs.

Gayle Gladys Kolb,
Respondent.

Filed August 20, 1996
Affirmed
Short, Judge

Waseca County District Court
File No. T594749

Hubert H. Humphrey, III, Attorney General, 1400 NCL Tower, 445 Minnesota Street, St. Paul, MN 55101 (for Appellant)

Allen P. Eskens, Waseca City Attorney, P.O. Box 3412, 305 Graif Building, 101 Hickory Street East, Mankato, MN 56002 (for Appellant)

Kevin D. Riha, P.O. Box 69, 114 South State Street, Waseca, MN 56093 (for Respondent)

Considered and decided by Short, Presiding Judge, Schumacher, Judge, and Foley, Judge. 1

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

SHORT , Judge
Gayle Gladys Kolb is charged with driving under the influence of alcohol in violation of Minn. Stat. § 169.121, subd. 1(a). Before trial, the court granted Kolb's motion to prohibit the state from introducing any testimony to support an argument that Kolb tampered with her urine sample, which showed an alcohol concentration of .00. Pursuant to Minn. R. Crim. P. 28.04, subd. 1(1), the state appeals from this pretrial order. We affirm.
D E C I S I O N
We will reverse a trial court's pretrial evidentiary order in a criminal prosecution only if the state demonstrates clearly and unequivocally both that (1) the trial court erred in its judgment, and (2) the error will have a critical impact on the outcome of the trial. State v. Joon Kyu Kim , 398 N.W.2d 544, 547 (Minn. 1987).
Because the disputed testimony is based on either personal observation or scientific fact, the trial court erred in concluding the state's proposed argument is impermissibly speculative. See State v. Wahlberg , 296 N.W.2d 408, 419 (Minn. 1980) (acknowledging parties have the right to present all legitimate arguments and proper inferences to be drawn from the evidence). However, critical impact arises only if the lack of the suppressed evidence significantly reduces the likelihood of successful prosecution. Joon Kyu Kim , 398 N.W.2d at 551.
Whether the erroneous suppression of evidence will critically impact a case "depends in large part on the nature of the state's evidence against the accused." State v. Zanter , 535 N.W.2d 624, 630 (Minn. 1995). The state has additional indicia of Kolb's intoxication, including: (1) two police officers' observations of Kolb's behavior and appearance; (2) a deficient breath sample showing a high alcohol concentration; and (3) her admission that she drank three beers that evening. Because this evidence is more than sufficient to establish an individual drove while under the influence of alcohol, the trial court's error will not have a critical impact on the state's ability to prosecute Kolb. See, e.g. , State v. Waterston , 371 N.W.2d 650, 652 (Minn. App. 1985) (finding evidence that the defendant smelled of alcohol, had an unsteady balance, and was unusually talkative supported his conviction for driving while intoxicated). Furthermore, it has not been shown that Kolb will introduce the test results from her urinalysis. If she does, the state may then seek to introduce rebuttal evidence of an impeaching nature if it first lays a proper foundation for any testimony.
Kolb requests an award of attorney fees on appeal. See Minn. R. Crim. P. 28.04, subd. 2(6) (permitting the defendant's recovery of reasonable attorney fees and costs incurred in responding to the appeal of a pretrial order by the prosecuting attorney). After reviewing the supporting information, we grant her motion for $1,392.99 in attorney fees and costs.
Affirmed.


1
  • *
Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to Minn. Const. art. VI, § 10.