STATE OF MINNESOTA
IN COURT OF APPEALS
Anoka County District Court
File No. C798155
Michael A. Hatch, Attorney General, Jeffrey S. Bilcik, Assistant Attorney General, 525 Park Street, Suite 200, St. Paul, MN 55103-2106 (for respondent)
Considered and decided by Lansing, Presiding Judge, Schumacher, Judge, and Willis, Judge.
Appellant Lori Lee Englehart challenges the revocation of her driving privileges under the implied consent law, claiming the officer made an illegal stop and that it was error to admit into evidence the results of the Intoxilyzer test. We affirm.
Englehart challenged the revocation of her driving privileges under Minn. Stat. § 169.123 (1998). At the revocation hearing, a police officer testified that he saw her attempt to make a left-hand turn onto Highway 65 at about 3:35 a.m., when her car apparently hit a patch of ice and spun 180 degrees. The officer testified that although there were scattered glazed spots on the roadway, he had not seen any other cars spin out that night. She failed a portable breath test after being stopped. She was then arrested for driving under the influence. The Intoxilyzer test showed an alcohol concentration of .18. During the test, the officer performed the air-blank and calibration tests, which indicated the machine was operating accurately.
At the hearing, Englehart argued that the officer had no basis to stop her and that the test was unreliable because the solution in the Intoxilyzer machine had not been changed on schedule. Also, the machine was sent in for repairs 17 days later. She offered for proof the police department's Intoxilyzer log, which showed that the solution batch number for the month she was tested had not changed from the previous month's number. The district court upheld the revocation, and Englehart appeals.
The officer here observed Englehart spin out and nearly collide with another car at 3:30 a.m. He had reason to be suspicious of the condition of the vehicle and the competency of the driver. This was not a random stop. We conclude his observations provided an objective and articulable basis for the stop.
Englehart claims the foundation for admitting the Intoxilyzer test was not properly established by the commissioner, and that even if it was, she has sufficiently rebutted the validity of the test as to make its admission erroneous. This court has held 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. Ahrens v. Commissioner of Pub. Safety, 396 N.W.2d 653, 656 (Minn. App. 1986).
The requirement for establishing prima facie foundation under Minn. Stat. § 634.16 (1998) includes a showing that 1) the test was performed by a properly trained person and 2) the test was pursuant to approved training. The commissioner met these requirements at Englehart's hearing by showing that the officer was trained and certified and he did perform the necessary air-blank and calibration tests to ensure the machine was working. This showing established prima facie trustworthiness for foundation. Englehart was then required to counter with evidence of why the test was untrustworthy. Bond v. Commissioner of Pub. Safety, 570 N.W.2d 804, 806 (Minn. App. 1987). This she has failed to do.
Englehart claims that the solution was not changed in a timely manner, as recommended by the BCA manual. We have rejected this argument in the past. In Bond, the court found that in order to establish foundation for admitting Intoxilyzer test results, the commissioner is not required to demonstrate that the simulator solution used in the Intoxilyzer instrument was changed in a timely manner. Id. at 806-07. Englehart failed to provide any further evidence that the solution was faulty.
Englehart's second argument is that her test results are unreliable because the machine was sent in for repairs 17 days later. Englehart must still provide evidence that the machine was not working when she took her test. In Fritzke v. Commisioner of Pub. Safety, 373 N.W.2d 649, 651 (Minn. 1985), the Minnesota Supreme Court held that an Intoxilyzer machine needing repairs subsequent to the opponent's test did not show that it affected the reliability of the test. See also State v. Nelson, 399 N.W.2d 629, 633 (Minn. App. 1987) (must have more than faulty reading 19 days subsequent to test), review denied (Minn. Apr. 17, 1987).
The law required Englehart to show that her test was inaccurate. She failed to do this, and we therefore conclude the district court did not err in admitting the test results.