STATE OF MINNESOTA
IN COURT OF APPEALS
Commissioner of Public Safety,
Filed February 10, 1998
Samuel A. McCloud, Kelly Vince Griffitts, Suite 1000, Circle K, Box 216, Shakopee, MN 55379 (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 (for respondent)
Considered and decided by Lansing, Presiding Judge, Willis, Judge, and Holtan, Judge.*
* Retired judge of the district court, serving as judge of the Minnesota Court of Appeals by appointment pursuant to Minn. Const. art. VI, § 10.
Appellant challenges the district court's order sustaining the revocation of appellant Thomas Floyd Falk's driver's license. We affirm.
A police officer stopped appellant for failing to stop at a red light on December 29, 1996. The officer then arrested appellant for driving while intoxicated and requested that he submit to a urine test. Appellant agreed to take the test, and the officer mailed appellant's test kit to the Bureau of Criminal Apprehension (BCA) laboratory.
James Nowell, a forensic scientist at the BCA, received the sealed test kit on December 31, 1996. Nowell tested the urine sample twice and concluded that its alcohol concentration was 0.16. Nowell testified that the test results were valid, but he admitted that under certain conditions, the alcohol in a urine sample can be the result of fermentation. But he also testified that he is experienced in determining whether a urine sample has fermented and when he opened appellant's test kit he did not notice a "noxious * * * [or] obnoxious odor" that would indicate fermentation.
To prevent fermentation, a test kit must contain fluoride, which acts as a preservative. The BCA tests one randomly selected kit of each 100 to determine if it contains the proper amount of fluoride. In Nowell's experience, all such randomly selected kits that the BCA has tested have contained the proper amount of fluoride. Nowell testified that the BCA's random sampling is a scientifically valid and reliable method of quality control that is recommended by the BCA laboratory director and accepted by the Society of Forensic Toxicologists.
This court will not set aside a district court's findings of fact unless they are clearly erroneous. Minn. R. Civ. P. 52.01. Clearly erroneous means "manifestly contrary to the weight of the evidence or not reasonably supported by the evidence as a whole." Northern States Power Co. v. Lyon Food Products, Inc., 304 Minn. 196, 201, 229 N.W.2d 521, 524 (1975).
When using the results of a chemical or scientific test as evidence, the proponent of the 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); see also Minn. Stat. § 169.123, subd. 6(3)(b) (1994). The proponent of the test must prove reliability by a preponderance of the evidence. See Renner v. Commissioner of Pub. Safety, 373 N.W.2d 628, 630 (Minn. App. 1985) (holding that commissioner is not required to prove rigid chain of custody for test samples to show test result is reliable by a fair preponderance of evidence). Evidence that the BCA furnished a urine test kit provides "a sufficient indicium of reliability to establish the prima facie admissibility of the test results." Dille, 258 N.W.2d at 568 (applying standard to BCA-furnished blood test kit). The burden then shifts to the defendant to show that the test was not trustworthy. Id.
Appellant argues that because respondent failed to introduce evidence of quality control procedures to ensure the correct amount of fluoride in the urine test kits, the district court clearly erred in finding that respondent established a prima facie case of reliability of the test results. Appellant relies on State v. Scott to support his assertion. No. C0-89-2066, 1990 WL 52605 (Minn. App. May 1, 1990). Unpublished opinions of this court are not precedential. Minn. Stat. § 480A.08, subd. 3(c) (1996). But even if Scott were a published opinion, we note that the state produced no evidence in Scott showing that either the company that manufactured the test kits or the BCA "employ[ed] any procedures to ensure the reliability of the * * * kits or the accuracy of the results." Scott, 1990 WL 52605 at **1. The record here shows that the BCA provided the kit to the arresting officer and that the BCA samples one kit of each 100 at random to see if it contains the correct amount of fluoride. Furthermore, the Society of Forensic Toxicologists endorses this random sampling as a scientifically valid and reliable quality control procedure. We conclude that the district court's finding that respondent provided adequate foundation for the reliability of the test was not clearly erroneous.
Respondent argues that appellant has not met his burden of proving that the test was invalid, unreliable, or inaccurate. Appellant provided no evidence to indicate that fermentation tainted the test results here. In fact, the only evidence on this issue is Nowell's testimony that he did not notice the odor that accompanies fermentation. We conclude that the district court did not clearly err in finding that the absence of an obvious indication of fermentation rebuts appellant's theory that the test results were erroneous.
[ 1] Respondent argues that appellant waived any objection to admission of the test results at the hearing, and therefore this court should not review the issue. See Thiele v. Stich, 425 N.W.2d 580, 582 (Minn. 1988) (stating that appellate courts generally refuse to address issues and theories not raised to or decided by the district court). Although appellant stipulated that Nowell received the kit containing appellant's urine sample, analyzed it, and found that it had an alcohol concentration of 0.16, appellant also argued before the district court that the test was unreliable. This issue is therefore properly before this court.