may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (1996).
STATE OF MINNESOTA
IN COURT OF APPEALS
Garrett R. Peterson, petitioner,
Commissioner of Public Safety,
Filed December 8, 1998
Anoka County District Court
File No. C4982834
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 Kalitowski, Presiding Judge, Schumacher, Judge, and Shumaker, Judge.
Garrett R. Peterson appeals from an order sustaining the revocation of his driving privileges, claiming that the Intoxilyzer test should not have been admitted into evidence and his due process rights were violated. We affirm.
Peterson was arrested for driving while under the influence on February 28, 1998, by Officer Ken Stangler of the Blaine Police Department and taken to the police station for an Intoxilyzer test. Stangler is a certified operator of the Intoxilyzer 5000, the equipment used for the test. Before Peterson took the test, Stangler instructed him to blow until he was told to stop. Peterson cooperated and the machine noted that it had taken an adequate sample by displaying a zero. Stangler did not tell Peterson to stop the instant a zero appeared; rather he allowed Peterson to continue blowing. The manual for the Intoxilyzer 5000 states that the officer should tell the person "You may stop" when the zero appears.
Peterson did not introduce any evidence showing that the reading was inaccurate and furthermore failed to object when the test was offered. The district court sustained the revocation. Peterson appeals.
A district court's finding is clearly erroneous if the appellate court decides that a mistake was made after reviewing the record as a whole. State v. Kvam, 336 N.W.2d 525, 529 (Minn. 1983). The appellate court will only overturn a district court's conclusion of law if it was erroneously applied to the facts of the case. Dehn v. Commissioner of Pub. Safety, 394 N.W.2d 272, 273 (Minn. App. 1986).
1. Peterson claims that the Intoxilyzer test results should not have been admitted into evidence because the commissioner failed to lay a proper foundation for admission and because the test is not reliable. At the hearing, however, Peterson's attorney specifically stated "no objection" when the test was offered. The failure to object to the test results precludes a later claim of inadmissibility. See State v. Folkert, 354 N.W.2d 583, 585 (Minn. App. 1984) (may not object to admissibility of evidence for first time on appeal).
Even if we did reach this issue, Peterson would not prevail because precedent regarding the Intoxilyzer test has repeatedly supported its reliability. The specific claim Peterson makes, that blowing past zero manipulates the test results, was rejected in Weierke v. Commissioner of Pub. Safety, 578 N.W.2d 815, 816 (Minn. App. 1998), and was recently rejected again in Brooks v. Commissioner of Pub. Safety, 584 N.W.2d 15, 17-18 (Minn. App. 1998), review denied (Minn. Nov. 24, 1998).
Peterson distinguishes his situation from Weierke, arguing that he brought forth evidence of the test's unreliability by using the manual to show Stangler did not follow the recommended procedure. Peterson's argument that the operator did not follow the recommended procedures and therefore the test results may have been affected does not, standing alone, show that the test results were inaccurate. There was no evidence to the contrary introduced by Peterson. The district court is afforded broad discretion in weighing evidence and making findings of fact. Minn. R. Civ. P. 52.01 (findings of fact by trial judge not set aside unless clearly erroneous).
2. Peterson also claims that Minn. Stat. § 634.16 (Supp. 1997) violates his due process rights. Because Peterson failed to raise this argument at the hearing, his claim is not properly before this court. Thiele v. Stich, 425 N.W.2d 580, 582-83 (Minn. 1998) (holding that matters must be raised in trial court to be considered on appeal); see also Weierke, 578 N.W.2d at 16 (refusing to review due process issue that was not raised during hearing).
Even if Peterson's claim were properly before this court, it must fail. The Minnesota Supreme Court has held that requiring the test's opponent to show evidence of unreliability after the state has made a prima facie case of reliability does not constitute a shift in the burden of proof. State, Dep't of Pub. Safety v. Habisch, 313 N.W.2d 13, 16 (Minn. 1981).