This opinion will be unpublished and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

C0-98-1037

Larry D. Jelen, petitioner,

Appellant,

vs.

Commissioner of Public Safety,

Respondent.

Filed October 27, 1998

Affirmed

Lansing, Judge

Hennepin County District Court

File No. IC475764

Charles A. Ramsay, Ramsay Law Firm, Ltd., 2151 Hamline Avenue North, Suite 111, Roseville, MN 55113 (for appellant)

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

Considered and decided by Lansing, Presiding Judge, Harten, Judge, and Anderson, Judge.

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

LANSING, Judge

A driver appeals from a district court order sustaining the revocation of his driver's license under the implied consent statute, Minn. Stat. § 169.123 (1996 & Supp. 1997). We affirm.

FACTS

Lawrence D. Jelen was arrested for driving under the influence of alcohol on February 22, 1998, and submitted to an Intoxilyzer test that disclosed an alcohol concentration of 0.10. Jelen's initial petition for judicial review asserted 12 paragraphs of claims with no supporting facts. On the afternoon of April 23, 1998, one and a half business days before the review hearing, Jelen served an amended petition with five claims, including the following challenge to the Intoxilyzer test:

That any test taken did not accurately and reliably indicate an alcohol concentration at or in excess of .10.

FACTS: The [I]ntoxilyzer 5000 is not free from influence by the person conducting the test and can be manipulated to alter the results. Consequently, the results are not valid.

Jelen sent a separate letter to the Attorney General's office dated April 24, 1998, that stated:

Pursuant to Minn. Stat. § 169.123, subd. 5c (Supp. 1997), Mr. Tom Burr, a forensic scientist, will testify at the hearing. He will testify that the Intoxilyzer test was not valid and reliable as the test is subject to manipulation by the person conducting the test.

At the hearing, the commissioner argued that Jelen's amended petition failed to state the specific facts underlying each claim. In response, Jelen said he planned to waive all claims except his challenge to the validity of the Intoxilyzer test. When asked to describe this challenge, Jelen's attorney replied, "That the officer can manipulate the test results." On further inquiry by the court, Jelen's attorney narrowed the challenge to the way in which officers are "trained to get the person to blow longer and harder than is required." According to the attorney, this practice raises the reading of the Intoxilyzer test and violates constitutional rights to equal protection. The court excluded the proposed expert testimony, concluding that Jelen's petition failed to allege the facts that would have been available when he engaged the expert.

Because several similar "zero plus" challenges were on appeal at the time, the court allowed Jelen to submit the legal argument without the supporting testimony. Jelen then moved to amend his petition to meet the statutory requirements. The court denied the motion but allowed him to cross-examine the officer who administered the test. The officer said he did not tell Jelen to stop blowing after the zero appeared, but instead waited until the machine's "tone" stopped. The reading went up "slightly" after the zero appeared. Jelen's attorney argued that the officer's testimony showed the test could be manipulated. The court found the officer's testimony did not raise an issue on the test's accuracy and concluded that the commissioner had shown a valid and accurate test. Jelen now appeals.

D E C I S I O N

I

Whether the district court erred in concluding that Jelen's petition failed to comply with Minn. Stat. § 169.123, subd. 5c(b)(3), is a question of law. This court's review is limited to determining whether the district court erroneously construed and applied the law to the undisputed facts of the case. See Berge v. Commissioner of Public Safety, 374 N.W.2d 730, 732 (Minn. 1985).

A petition for judicial review of a revocation under Minnesota's implied consent law must "state with specificity the grounds upon which the petitioner seeks rescission of the order of revocation, disqualification, or denial and state the facts underlying each claim asserted." Minn. Stat. § 169.123, subd. 5c(b)(3) (Supp. 1997).

Jelen concedes his original petition was a "shotgun" petition, with 12 general claims and no facts. Because Jelen waived four of the five claims in the amended petition at the hearing, we address only the challenge to the Intoxilyzer test's validity. After reviewing the amended claim, we agree with the district court's assessment that Jelen's statement of the grounds and the facts could have been more concrete. We also agree that, in light of Jelen's retaining an expert by the date of the amended petition, Jelen must have advanced the focus of his claim beyond the generalized statement that he submitted. But we conclude that the petition's recitation of the inaccuracy and unreliability of the alcohol concentration test, together with the statement that the Intoxilyzer 5000 could be manipulated to alter the results, was minimally sufficient to raise the issue of whether obtaining too great a breath sample distorted the test.

In reaching this conclusion, we note that the state legislature recently renewed the requirement that petitions for judicial review state the facts underlying each claim asserted. Id.; 1997 Minn. Laws 1st Spec. Sess. ch. 2, § 47. Although the statute serves the valuable purpose of ensuring "that petitioners only advance claims truly at issue," Eckstein v. Commissioner of Pub. Safety, 471 N.W.2d 114, 116 (Minn. App. 1991), review denied (Minn. Aug. 1, 1991), the essential purpose of the heightened requirement is still notice, not strict technical definition. We conclude that the pleading satisfies the statute.

Given this holding, we need not address Jelen's claim that the court violated his due process rights by requiring him to comply with the statutory pleading requirement when the commissioner's mandatory disclosure notice failed to state the basis of witness testimony. See Minn. Stat. § 169.123, subd. 5c (Supp. 1997) (mandatory disclosure requirements). Similarly, we need not address whether the district court abused its discretion by denying Jelen's in-court motion to amend his petition.

II

Having determined that Jelen's petition complied with the statutory requirements, we must now determine whether the district court abused its discretion in granting the commissioner's motion to exclude the testimony of Jelen's proposed expert witness. Potential witnesses, including expert witnesses, and the basis of their testimony must be disclosed as part of the mandatory prehearing discovery. Minn. Stat. § 169.123, subd. 5c(d)(4) (Supp. 1997). Except for the limitations on prehearing discovery, judicial review is conducted according to the rules of civil procedure. Id., subd. 5c(d) (Supp. 1997). Under the rules of civil procedure, whether to admit or exclude evidence rests within the district court's broad discretion. Uselman v. Uselman, 464 N.W.2d 130, 138 (Minn. 1990). This court will not disturb a district court's evidentiary ruling unless it is based on an erroneous view of the law or constitutes an abuse of discretion. Id.

Whether a court should suppress expert testimony for an attorney's failure to make a timely disclosure turns on whether the attorney's failure is inexcusable and the degree to which the opposing party is prejudiced by the late disclosure. Id. If an attorney's failure to disclose is "inadvertent but harmful," the court should impose less drastic remedies, such as granting a continuance and assessing costs against the party who is at fault. Dennie v. Metropolitan Med. Ctr., 387 N.W.2d 401, 405 (Minn. 1986) (quoting Krech v. Erdman, 305 Minn. 215, 218, 233 N.W.2d 555, 557 (1975)). The ultimate decision rests within the discretion of the district court, which is best positioned to assess possible prejudice and available remedies. Id.

Given this narrow scope of review, we conclude that the district court's decision to exclude the expert testimony was not an abuse of discretion. Jelen's original shotgun petition is dated March 5, 1998. He did not serve his amended petition until the afternoon of Thursday, April 23, 1998--just one and one-half business days before the hearing. Jelen did not notify the commissioner of his expert witness until the next day. Moreover, he did not fully explain the nature of his challenge to the Intoxilyzer test until the day of the hearing. Even though the unilaterally amended petition minimally complies with the statute, this court could still consider the adequacy of the notice to allow appropriate preparation and response from the commissioner, the timing of the notice, the nature of the expert testimony, and the demonstrated relevance to the issues. See Schreiner v. Schmitz, 418 N.W.2d 206, 211 (Minn. App. 1988) (affirming district court's decision to disallow expert testimony as unfairly prejudicial), review granted (Minn. Apr. 4, 1988), appeal dismissed (Dec. 14, 1988); Norwest Bank Midland v. Shinnick, 402 N.W.2d 818, 823-24 (Minn. App. 1987) (same).

III

Jelen's final argument is that regardless of the resolution of the pleading issues, the district court abused its discretion in admitting the breath test into evidence because the commissioner failed to establish a prima facie foundation for its admission. See McNab v. Jeppesen, 258 Minn. 15, 17, 102 N.W.2d 709, 711 (1960) (decision on sufficiency of foundation for evidence lies within district court's discretion); Lindberg v. Commissioner of Pub. Safety, 498 N.W.2d 301, 303 (Minn. App. 1993) (this court will not overturn district court's evidentiary ruling absent abuse of discretion.)

Jelen argues the test was unreliable because the officer did not conduct the test pursuant to his training--meaning the officer told Jelen to keep blowing after the zero appeared even though an exercise in an official lab training manual advises officers to tell suspects to stop blowing at zero. We reject the argument for two reasons. First, Jelen did not object when the commissioner offered the test results into evidence. See State v. Folkert, 354 N.W.2d 583, 585 (Minn. App. 1984) (party may not object to admissibility of allegedly improper evidence on appeal when such evidence is admitted without objection). Second, the commissioner is required to show only that the officer is properly trained and followed the established procedures. See Minn. Stat. § 634.16 (1996) (results of infrared breath tests such as Intoxilyzer test admissible when test performed by fully trained person in accordance with such training); Bond v. Commissioner of Pub. Safety, 570 N.W.2d 804, 806-07 (Minn. App. 1997) (same). It is not disputed that Officer Williams had the required training. Moreover, Jelen did not counter the commissioner's evidence that the established procedures were proper procedures and properly followed. See id. (after commissioner establishes foundation for admitting Intoxilyzer test results, driver must produce evidence showing why test was not trustworthy). See also Brooks v. Commissioner of Pub. Safety, 584 N.W.2d 15, 20 (Minn. App. 1998) (statute "permits testing of sample that is greater than the minimum adequate sample indicated by the Intoxilyzer and is silent on the issue of a maximum standard for an adequate breath sample"); Weierke v. Commissioner of Pub. Safety, 578 N.W.2d 815, 816 (Minn. App. 1998) ("The implied consent statute does not require testing at the precise point at which a minimum adequate breath sample is provided and it permits testing of a sample that is greater than the minimum adequate sample indicated by the Intoxilyzer machine.").

Affirmed.