This opinion will be unpublished and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
C3-96-346


Chad Reding, petitioner,
Appellant,

vs.

Commissioner of Public Safety,
Respondent.


Filed August 13, 1996
Affirmed
Schumacher, Judge

Redwood County District Court
File No. C395527


J. Brian O'Leary, Post Office Box 76, Springfield, MN 56087 (for 
Appellant)

Hubert H. Humphrey, III, Attorney General, Jeffrey S. Bilcik, 
William P. Hefner, Assistant Attorneys General, 525 Park Street, 
Suite 200, St. Paul, MN 55103 (for Respondent)


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



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

SCHUMACHER, Judge
	Appellant Chad Reding was arrested for driving while 
under the influence in violation of Minn. Stat.  169.123 (1994).  
Reding appeals, arguing that the Intoxilyzer test results were 
invalid because the tests were administered more than two hours 
after the accident and because he had consumed alcohol after the 
accident, but before the tests.  We affirm.

FACTS

	On October 8, 1995, around 10:30 p.m., Reding was driving 
his car and was involved in an accident.  Reding left the scene of 
the accident and testified that he went to his home where he 
consumed alcohol.  Later that night, Reding was contacted by the 
authorities.  State troopers investigating the accident went to 
Reding's residence and arrested him.
	Once in custody, Reding was observed by state trooper 
Cook for a short period of time and was then asked to submit to an 
Intoxilyzer test at approximately 12:50 a.m.  After Reding failed to 
provide an adequate breath sample for the first test, Cook again 
observed Reding for a short time, and then asked him to submit to 
another Intoxilyzer test.  This time Reding provided an adequate 
air sample, and readings of .216 and .217 were obtained.  When 
Cook asked Reding to provide the second required breath sample 
for the session, however, he refused
	Cook then met with state trooper Messer to discuss how 
best to handle Reding's refusal to submit to the second test.  At 
approximately 2:19 a.m., Reding was asked by Messer to submit to 
testing again.  Reding provided an adequate sample and a reading 
of .18 was obtained.  Based on the test results, Reding's driver's 
license was revoked.  Reding petitioned for judicial review of the 
license revocation.  The revocation was sustained.

D E C I S I O N

Conclusions of law will be overturned only upon a 
determination that the trial court has erroneously construed 
and applied the law to the facts of the case.
Dehn v. Commissioner of Pub. Safety, 394 N.W.2d 272, 273 
(Minn. App. 1986).
	1.	Reding argues that results of the Intoxilyzer test 
were invalid and unreliable because the test was administered more 
than two hours after the accident.   He contends that Minn. Stat. 
 169.121, subd. 1(e) (1994), requires that the Intoxilyzer test be 
administered within two hours of the time of driving.  Reding also 
argues that because he testified he consumed alcohol after the 
accident, and nearly two hours before the test, the results are not 
valid or reliable to support the trial court's conclusion that he was 
driving while under the influence of alcohol.  Reding contends, 
therefore, that his license revocation should be rescinded.
It is a crime for any person to drive, operate, or be in 
physical control of any motor vehicle within this state or 
upon the ice of any boundary water of this state: * * * (e) 
when the person's alcohol concentration as measured within 
two hours of the time of driving is 0.10 or more; * * * 
 Minn. Stat.  169.121, subd. 1(e) (emphasis added); see also 
Minn. Stat.  169.123 (1994).
Upon the trial of any prosecution arising out of acts alleged 
to have been committed by any person arrested for driving, 
operating, or being in physical control of a motor vehicle in 
violation of subdivision 1, the court may admit evidence of 
the amount of alcohol or a controlled substance in the 
person's blood, breath, or urine as shown by an analysis of 
those items.

 	* * * *

	The foregoing provisions do not limit the 
introduction of any other competent evidence bearing upon 
the question whether or not the person violated this section, 
including tests obtained more than two hours after the 
alleged violation and results obtained from partial tests 
* * *.
Minn. Stat.  169.121, subd. 2 (1994) (emphasis added).  The 
Commissioner has the burden of proof in implied consent cases, 
and that burden of proof is by preponderance of the evidence.  
King v. Commissioner of Pub. Safety, 366 N.W.2d 613, 615 
(Minn. App. 1985).  The Commissioner has the burden of making 
a prima facie showing that the administration of a chemical test 
conforms to the procedures necessary to insure reliability.  State v. 
Dille, 258 N.W.2d 565, 567 (Minn. 1977).   Once the state has 
established sufficient foundation to justify admitting the test 
results, the defendant may then present evidence to impeach the 
credibility of the test results.  Bielejeski v. Commissioner of Pub. 
Safety, 351 N.W.2d 664, 666 (Minn. App. 1984).
	The trial court found that Reding had consumed alcohol 
between the time of driving and the Intoxilyzer test.  The trial court 
also made numerous evidentiary findings that support the 
conclusion the test results were properly obtained, namely:  (1) 
both state troopers administering the tests were certified 
Intoxilyzer operators; (2) before administering the tests, Cook 
observed Reding for any intervening behavior to insure that valid 
results would be obtained; and (3) both troopers operated the 
Intoxilyzer machine in the correct manner and recorded the results 
properly.  Concluding that the Intoxilyzer test was properly 
administered and the results valid, the trial court held that Reding 
had not presented sufficient evidence to show the test results were 
attributable to his consumption of alcohol after the accident or that 
he had an alcohol concentration level of less than .10 at the time of 
the accident.
	On review of the record, we believe that the findings of the 
trial court are supported by substantial evidence.  The state 
troopers were certified Intoxilyzer operators and properly 
administered the Intoxilyzer test.  Although the trial court 
determined that Reding consumed alcohol after the accident and 
prior to the Intoxilyzer tests, the court found he failed to any 
present evidence that would show the test results were attributable 
to his post-accident drinking.  We note that Reding did not testify 
as to the amount of alcohol he claimed to have consumed after the 
accident.  We conclude, therefore, that Reding has failed to show 
that the Intoxilyzer test results were invalid.

	Affirmed. 

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