This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (1996).

STATE OF MINNESOTA

IN COURT OF APPEALS

CX-96-2112

Charles Caleb Luttinen, petitioner,

Respondent,

vs.

Commissioner of Public Safety,

Appellant.

Filed March 25, 1997

Reversed

Parker, Judge

Hennepin County District Court

File No. IC474000

Roger A. Gershin, 333 North Washington Avenue, Suite 319, Minneapolis, MN 55401 (for respondent)

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

Considered and decided by Parker, Presiding Judge, Huspeni, Judge, and Harten, Judge.

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

PARKER, Judge

The Commissioner of Public Safety appeals from a trial court order rescinding the revocation of respondent Charles Luttinen's driving privileges. The Commissioner challenges the trial court's findings of fact, specifically that the Intoxilyzer 5000 machine was subject to a margin of error of plus or minus .01 and argues that the trial court erred as a matter of law in requiring alcohol concentration of .10 to be proved within a margin of error. We reverse.

D E C I S I O N

1. Findings of Fact

It is settled that a trial court's findings of fact are entitled to the same weight as a jury verdict, and with oral testimony involved, the trial court alone has the opportunity to judge the credibility of witnesses; thus, findings of fact are not to be set aside unless clearly erroneous. State, Department of Highways v. Beckey, 291 Minn. 483, 487, 192 N.W.2d 441, 445 (1971).

The sole evidence in this case consisted of oral testimony from Trooper Paul R. Davis. An examination of the record reveals that Trooper Davis testified that the simulator solution used to calibrate the intoxilyzer had a margin of error of plus or minus .01. Trooper Davis rejected the suggestion that since the calibration method had a margin of error, then the intoxilyzer itself would be subject to the same margin of error. He stated that he could not answer whether the Intoxilyzer 5000 was subject to a margin of error because he was not a chemist, and this question would have to be answered by someone from the BCA.

We find no other testimony on the record to support the trial court's findings that the Intoxilyzer 5000 was subject to a margin of error of plus or minus .01. There is no evidence that the test was administered improperly. It appears that the trial court implied the existence of a margin of error from Trooper Davis' testimony that any instrument being calibrated by an external source can be no more accurate than the external source used to calibrate it. Without any other evidence on the record, we hold that the trial court's finding that the Intoxilyzer 5000 was subject to a margin of error of plus or minus .01 was error as a matter of law.

2. Intoxilyzer Margin of Error

A reviewing court is not bound by and need not give deference to a trial court's decision on a purely legal issue. Frost-Benco Elec. Ass'n v. Minnesota Pub. Utils. Comm., 358 N.W.2d 639, 642 (Minn. 1984). The construction of a statute is a question of law and is therefore fully reviewable by an appellate court. Hibbing Educ. Ass'n v. Public Employment Relations Bd., 369 N.W.2d 527, 529 (Minn. 1985).

The Commissioner argues that the trial court erred as a matter of law in requiring an alcohol concentration of .10 to be proved within some margin of assumed possible error.

The implied consent law authorizes the Commissioner of Public Safety to revoke a person's driver's license if the officer certifies that there was probable cause to believe the person driving was driving while under the influence of alcohol and if "test results indicate an alcohol concentration of .10 or more." Minn. Stat. § 169.123, subd. 4 (1994).

The proponent of a chemical test must establish that the test 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). After a prima facie showing of trustworthy administration, it is incumbent on the petitioner in an implied consent proceeding to suggest reasons why the test was untrustworthy. Tate v. Commissioner of Public Safety, 356 N.W.2d 766, 768 (Minn. App. 1984) (citing Dille, 258 N.W.2d at 568). So long as the test is accurately administered, the validity of the breathalyzer test is recognized by this court. State v. Kienast, 357 N.W.2d 390, 391 (Minn. App. 1984).

In Schildgen v. Commissioner of Public Safety, 363 N.W.2d 800 (Minn. App. 1985), we reversed the trial court, holding that under Minn. Stat. § 169.123, subd. 4, the Commissioner must revoke a person's drivers license when "the test results indicate an alcohol concentration of .10 or more." Id. at 801. Furthermore, we held that Minn. Stat. § 169.123, subd. 6(3), expressly limits the issues to be raised at a hearing to whether "'the test results indicate an alcohol concentration of .10 or more at the time of testing,' not whether or not the reading was .10 coupled with some margin of error." Id.

Again, in Loxtercamp v. Commissioner of Public Safety, 383 N.W.2d 335 (Minn. App. 1986), review denied (Minn. May 22, 1986), we reversed the trial court's order rescinding the revocation of respondent's driving privileges because the Commissioner proved trustworthy administration of the breathalyzer test, and no evidence was introduced challenging the procedures used. Id. at 337. We explicitly held that "the Commissioner is not required to prove within a margin of error that respondent's alcohol concentration was .10 or more." Id. at 338; see also Grund v. Commissioner of Public Safety, 359 N.W.2d 652, 653 (Minn. App. 1984) (the implied consent law does not require the Commissioner of Public Safety to prove an alcohol concentration of .10 within an alleged margin for potential error); Hrncir v. Commissioner of Public Safety, 370 N.W.2d 444 (Minn. App. 1985) (Commissioner need not prove alcohol concentration of .10 within a margin of error for intoxilyzer test results to be valid).

Based upon the above-cited cases, we observe it is settled law that the implied consent statute, Minn. Stat. § 169.123, subd. 2(4) (1994), requires the Commissioner to revoke a person's license when "the test results indicate an alcohol concentration of .10 or more." The statute requires an alcohol concentration of .10 or more, not .10 plus or minus a margin of error. We conclude that the trial court erred as a matter of law in rescinding the revocation of Luttinen's driver's license, because the record demonstrates that the Commissioner proved trustworthy administration of the intoxilyzer test that resulted in a blood alcohol reading of .10, and no evidence was introduced challenging the procedure used.

Reversed.