This opinion will be unpublished and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

C1-96-1169

Michael Gary Vrooman, petitioner,

Appellant,

vs.

Commissioner of Public Safety,

Respondent.

Filed November 26, 1996

Affirmed

Kalitowski, Judge

Meeker County District Court

File No. C596212

Robert D. Stoneburner, Stoneburner Law Office, 100 Washburne Avenue, Paynesville, MN 56362 (for Appellant)

Hubert H. Humphrey III, Attorney General, Joel A. Watne, Assistant Attorney General, 200 Capitol Office Building, 525 Park Street, St. Paul, MN 55103-2106 (for Respondent)

Considered and decided by Parker, Presiding Judge, Kalitowski, Judge, and Forsberg, Judge.[*]

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

KALITOWSKI, Judge

Appellant Michael Vrooman challenges a district court decision sustaining the Commissioner of Public Safety's revocation of his driver's license for driving under the influence of alcohol. Appellant claims the district court erred in determining the Commissioner established the testing method used to evaluate appellant's urine was valid and reliable and the tests results were accurate. We affirm.

D E C I S I O N

Findings of fact, whether based on oral or documentary evidence, shall not be set aside unless clearly erroneous, and due regard shall be given to the opportunity of the trial court to judge the credibility of the witnesses. Minn. R. Civ. P. 52.01. Findings that are reasonably supported by the evidence are not clearly erroneous. Lindberg v. Commissioner of Pub. Safety, 498 N.W.2d 301, 303 (Minn. App. 1993).

The Commissioner has the burden of establishing that the chemical "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 (Minn. 1977) (citations omitted). Based on the evidence, the district court found that the Commissioner met this burden. We agree.

It is undisputed that Vrooman's urine sample was collected using a Bureau of Criminal Apprehension (BCA) urine test kit. The use of a test kit provided by the BCA provides "sufficient indicium of reliability to establish the prima facie admissibility of the test results." Dille, 258 N.W.2d at 568. It is also undisputed that BCA test procedures were used to analyze the urine sample. In Lindberg, we said evidence that BCA procedures were followed "was prima facie proof that the test's administration was trustworthy." Lindberg, 498 N.W.2d at 304.

Once a prima facie showing of reliability is established, the driver is "free to come forward with evidence challenging this foundation." State, Dep't of Pub. Safety v. Habisch, 313 N.W.2d 13, 16 (Minn. 1981). The defendant, however, will not be successful in challenging his test results "if his arguments rest upon mere speculation that something might have occurred to invalidate those results"; he must show that his test results were actually affected. Hounsell v. Commissioner of Pub. Safety, 401 N.W.2d 94, 96 (Minn. App. 1987).

Vrooman challenges the validity of the tests through the conclusions of an expert witness. In the expert's opinion, because a second set of tests performed on Vrooman's urine sample more than two months after the sample was taken yielded an alcohol concentration lower than the BCA's initial tests in January, the BCA's initial tests must be unreliable. This conclusion, however, does not impugn the validity of the tests. See Schwarzrock v. Commissioner of Pub. Safety, 388 N.W.2d 425 (Minn. App. 1986) (rejecting expert's opinion that variations in test results alone called into question the reliability of the tests absent facts which "impugn the validity of the test").

Further, another expert witness testified that 80 percent of the time the alcohol concentration of a urine sample will drop due to a loss of alcohol caused by freezing the sample in a non-airtight container. Because of this loss, the expert testified that the subsequent test results did not call into question the reliability of the initial BCA tests.

The district court heard the testimony of both witnesses and found the test method used and the test result obtained by the BCA in January to be reliable. This finding is reasonably supported by the evidence.

Affirmed.

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