may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (1996).
STATE OF MINNESOTA
IN COURT OF APPEALS
Albert Arnold Garcia, petitioner,
Commissioner of Public Safety,
File No. IC474419
Hubert H. Humphrey, III, Minnesota Attorney General, 102 State Capitol, St. Paul, MN 55155
Joel A. Watne, Assistant Attorney General, 200 Capitol Office Building, 525 Park Street, St. Paul, MN 55103 (for appellant)
Jeffrey B. Ring, Jeffrey B. Ring & Associates, The Interchange Tower, Suite 1690, 600 South Highway 169, Minneapolis, MN 55426 (for respondent)
Considered and decided by Peterson, Presiding Judge, Kalitowski, Judge, and Short, Judge.
The driving privileges of Albert Arnold Garcia were revoked pursuant to Minn. Stat. § 169.123, subd. 4(e) (1996). On his petition for review of that revocation, the trial court rescinded the revocation. We reverse.
D E C I S I O N
The affirmative defense of post-accident alcohol consumption is available in a proceeding under the implied consent statute. Dutcher v. Commissioner of Pub. Safety, 406 N.W.2d 333, 336 (Minn. App. 1987). In order to avail himself of that affirmative defense, Garcia must prove (a) he was drinking after the "time of actual driving, operating, or physical control," but before taking the Intoxilyzer test, and (b) such drinking caused his alcohol concentration to equal or exceed .10 at the time of testing. Id.; see Minn. Stat. § 169.121, subd. 2(d) (1996) (outlining elements of "drinking after" affirmative defense in criminal proceeding).
The record demonstrates: (1) Garcia was stopped for driving 67 miles per hour in a 50 miles-per-hour zone; (2) prior to the traffic stop, Garcia had "been drinking earlier in the evening"; (3) as the officer approached Garcia's vehicle, Garcia swallowed the contents of a 1.5 ounce bottle of Scope to remedy the "foulness" of his breath; (4) while speaking with Garcia, the arresting officer noted the odor of an alcoholic beverage and observed Garcia's eyes were bloodshot and glassy; (5) at the scene, the officer did not see an empty Scope bottle and Garcia did not mention the mouthwash incident to the officer; (6) the officer administered the horizontal gaze nystagmus test, the one-legged-stand test, and the heel-to-toe test, and observed signs of Garcia's impairment on each test; (7) Garcia failed a preliminary screening test and was placed under arrest; (8) after hearing the Implied Consent Advisory, Garcia made a telephone call and agreed to take a breath test; (9) a properly qualified operator administered a functioning Intoxilyzer test to Garcia, who provided two adequate samples registering readings of .106, .109, .108, and .110 alcohol concentration; and (10) Garcia's expert testified: (a) Scope has an alcohol content of 18.9 percent; (b) if a 240-pound male consumed 1.5 ounces of Scope 45 minutes before submitting to a test, it would increase the test result by .011; and (c) a person would burn off .011 alcohol concentration during the 45-minute time period between the stop and the test. Given these facts, we conclude the Dutcher defense is unavailable because Garcia failed to offer evidence of post-driving drinking that caused his test result to be equal to or greater than 0.10. Under these circumstances, the trial court erred in concluding Garcia had satisfied his burden of establishing an affirmative defense.