Minn. Stat. § 480A.08, subd. 3 (1996).
STATE OF MINNESOTA
IN COURT OF APPEALS
Commissioner of Public Safety,
Filed June 16, 1998
File No. IC474721
Philip Jerome Hauser, 7045 Upton Avenue S., Richfield, MN 55423 (pro se respondent)
Hubert H. Humphrey III, Attorney General, Joel A. Watne, Assistant Attorney General, 525 Park Street, Suite 200, St. Paul, MN 55103 (for appellant)
Considered and decided by Huspeni, Presiding Judge, Short, Judge, and Willis, Judge.
Commissioner of Public Safety challenges the district court's order rescinding revocation of respondent's driver's license, claiming the court erred in concluding that the commissioner must present foundation evidence that the simulator solution used to perform an Intoxilyzer test was changed in a timely manner. We reverse.
Respondent Philip Jerome Hauser was arrested for DWI on March 6, 1997. On March 13, 1997, respondent filed a petition for judicial review of the revocation of his driving privileges. At a hearing on the matter, Sergeant Daniel Kubes of the St. Louis Park police department testified that he conducted an Intoxilyzer breath test on respondent early in the morning of March 6, 1997. Sergeant Kubes has been a certified Intoxilyzer operator for approximately 10 years.
Sergeant Kubes testified that before he conducted respondent's test, the machine performed an internal diagnostic procedure that indicated the machine was "okay." Two air blank tests of the machine both produced readings of 0.000. Sergeant Kubes testified that these readings were within acceptable limits. Respondent then provided two breath samples.
Sergeant Kubes performed a calibration standard test between the two breath samples using a simulator solution provided by the Minnesota Bureau of Criminal Apprehension. He testified that (1) the purpose of the calibration test is to make certain that the instrument is running properly, (2) the simulator solution has a known alcohol concentration that must fall within certain limits, and (3) the readings from the calibration standard test he performed were within acceptable limits. Sergeant Kubes acknowledged that the solution must be changed every 30 days or after the Intoxilyzer log page is full, whichever occurs first. Although he claimed that he had changed the solution in the past, Sergeant Kubes did not know whether the solution had been changed in a timely manner before he administered the test to respondent. The final reading of respondent's test was 0.13.
Because the commissioner failed to show that Sergeant Kubes or someone else had changed the simulator solution in the Intoxilyzer machine as required, the district court rescinded the revocation of respondent's driver's license. The commissioner appeals.
The commissioner argues that the district court erred in concluding that the commissioner must present foundation evidence showing that the simulator solution used to perform the Intoxilyzer test was changed in a timely fashion. Generally,
[e]videntiary rulings on foundation are committed to the sound discretion of the trial judge and are not the basis for reversal unless that discretion has been clearly abused.
Kelzer v. Wachholz, 381 N.W.2d 852, 854 (Minn. App. 1986). But this court has concluded that "the implied consent statutory scheme limits the district court's discretion regarding the foundation required for admitting Intoxilyzer test results as a matter of law." Bond v. Commissioner of Pub. Safety, 570 N.W.2d 804, 806 (Minn. App. 1997).
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(b)(10) (Supp. 1997) (listing issues that district court may consider at implied consent hearings, including whether testing method used was valid and reliable). The results of an infrared breath test are "admissible in evidence without antecedent expert testimony that an infrared breath-testing instrument provides a trustworthy and reliable measure of the alcohol in the breath" when administered by a person properly trained in the operation of the instrument. Minn. Stat. § 634.16 (1996). Because an Intoxilyzer is an infrared breath-testing instrument, if the commissioner has shown that a properly trained person administered the test,
the commissioner does not have an affirmative burden to produce records that demonstrate that the standard simulator solution used in the Intoxilyzer has been changed in a timely fashion.
Bond, 570 N.W.2d at 806; see also Minn. R. 7502.0420, subpt. 2 (1997) (stating that Intoxilyzer uses infrared technology and approves use of instrument for determining alcohol concentration). Once the proponent has made a prima facie showing of trustworthy administration, the burden shifts to the defendant to show that the test was not trustworthy. See Dille, 258 N.W.2d at 568.
By presenting evidence that a properly trained person administered the test, the commissioner made a prima facie showing of trustworthy test administration. See Bond, 570 N.W.2d at 807. The test results were therefore admissible unless respondent produced evidence suggesting a reason why the test was not trustworthy. See id. Respondent produced no such evidence; his sole argument to the district court was that the commissioner did not show that the simulator solution had been changed in a timely fashion. But the commissioner does not have that burden. See id. at 806. Respondent did not challenge the commissioner's prima facie showing of trustworthy test administration, and we therefore conclude the district court erred in rescinding the revocation of respondent's driver's license because of the commissioner's failure to present evidence that the simulator solution was changed properly.