This opinion will be unpublished and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

C4-96-680

Maurice Edward Carlin, petitioner,

Appellant,

vs.

Commissioner of Public Safety,

Respondent.

Filed November 12, 1996

Reversed

Amundson, Judge

Sherburne County District Court

File No. C396138

John D. Ellenbecker, 101 Seventh Avenue South, P.O. Box 1127, St. Cloud, MN 56302 (for appellant)

Hubert H. Humphrey, III, Attorney General, Jeffrey Lebowski, Assistant Attorney General, 525 Park Street, Suite 200, St. Paul, MN 55103 (for respondent)

Considered and decided by Randall, Presiding Judge, Amundson, Judge, and Foley, Judge.[*]

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

AMUNDSON, Judge

Appellant Maurice Edward Carlin challenges the trial court's order sustaining the revocation of his driver's license, arguing that the trial court abused its discretion in concluding that there was sufficient foundation regarding the reliability of the Intoxilyzer test. We reverse.

FACTS

On December 29, 1995, appellant Maurice Edward Carlin was stopped and taken to the St. Cloud Law Enforcement Center for chemical testing.

During the first test, the Intoxilyzer terminated the testing process and indicated on the test record "Sample Introduced at Improper Time." After the second test, the printer malfunctioned, making the printed record partially or mostly illegible. This test indicated an alcohol concentration of .15. Carlin's driver's license was revoked.

Carlin petitioned for judicial review of his driver's license revocation. At the hearing, the court rejected Carlin's argument that the Intoxilyzer test results should not be admitted because there was not adequate foundation regarding the test's reliability and sustained the revocation. This appeal followed.

D E C I S I O N

The Commissioner, as proponent of the Intoxilyzer test, must establish that the 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). Once the Commissioner establishes the prima facie admissibility of the Intoxilyzer test, it is incumbent on the driver to show why the test was untrustworthy. Id. at 568.

Evidentiary rulings on foundation are committed to the sound discretion of the trial court and will be the basis for reversal only where that discretion has been clearly abused. Barna v. Commissioner of Public Safety, 508 N.W.2d 220, 221 (Minn. App. 1993).

In this case, (1) during the first test, the machine indicated "Sample Introduced at Improper Time"; (2) Officer Smith, who has been a certified Intoxilyzer operator for about 12 years and has administered approximately 120 tests, testified that he had never seen the machine malfunction in this way; (3) after the second test sequence the printer malfunctioned and "squished all the letters together"; (4) Smith continued to try to clean the printer, and reprinted the test record five times, but the printout was still illegible; and (5) after Carlin's test, the machine was sent away to be repaired. Based on these facts, we conclude that the trial court clearly abused its discretion in admitting the Intoxilyzer test results.

Reversed.

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