This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. ß 480A.08, subd. 3 (1998).

STATE OF MINNESOTA
IN COURT OF APPEALS
C0-99-674

Janet L. Rothbart, petitioner,
Appellant,

vs.

Commissioner of Public Safety,
Respondent.

Filed November 23, 1999
Affirmed
Amundson, Judge

Hennepin County District Court
No. 476314

 

Charles A. Ramsay, 2151 Hamline Avenue North, Suite 111, Roseville, Minnesota 55113 (for appellant)

Mike Hatch, Attorney General, Kelly S. Kemp, Assistant Attorney General, 525 Park Street, Suite 200, St. Paul, Minnesota, 55103 (for respondent)

Considered and decided by Amundson, Presiding Judge, Lansing, Judge, and Peterson, Judge.

U N P U B L I S H E D   O P I N I O N

AMUNDSON, Judge

Appellant challenges the district courtís decision sustaining the commissionerís revocation of her driving privileges arguing 1) that the court clearly erred when it found that she failed to rebut the commissionerís prima facie case; 2) that the court impermissibly shifted the burden of persuasion; and 3) that the statutory presumption violates her due process rights. Because we conclude that Rothbart failed to satisfy her burden of production, we affirm.

FACTS

Appellant Janet Rothbart was arrested on August 12, 1998, for driving under the influence of alcohol. Following her arrest, Rothbart was transported to the police station, where she submitted to an Intoxilyzer breath test that revealed an alcohol concentration of 0.11. Approximately two hours and forty minutes after she provided a breath sample, Rothbart also had an independent blood sample drawn, which revealed an alcohol concentration of 0.054.

Respondent Commissioner of Public Safety (the commissioner) subsequently revoked her driving privileges for ninety days. Rothbart petitioned for judicial review of her license revocation. At the implied consent hearing, the commissioner called a forensic scientist from the Bureau of Criminal Apprehension (BCA) Laboratory to testify about the rate of elimination or "burn-off" rate of alcohol in a personís blood stream. The scientist testified that the average elimination rate for the general population is .015 per hour. He testified that if the accuracy of both tests were presumed then Rothbartís elimination rate would have to be 0.021 per hour. He further stated that this elimination rate is possible and well within the range of burn-off rates derived from the BCAís controlled drinking experiments, but that only fifteen percent of the population possesses an elimination rate of .021.

D E C I S I O N

De novo review is proper where the dispute is not about the district courtís fact findings, but about its application of the law to those facts. Hubred v. Control Data Corp., 442 N.W.2d 308, 310 (Minn. 1989). Because the facts here are not in dispute, de novo review is proper.

Rothbart argues that her Intoxilyzer test result indicating that her alcohol concentration was 0.11 at the time of her arrest was inaccurate and unreliable and that the commissioner failed to meet its burden of persuasion to show that the test was reliable. Rothbart contends that because a .021 elimination rate occurs in only fifteen percent of the population, the commissioner failed to establish by a preponderance of the evidence that the Intoxilyzer test result was reliable. See Genung v. Commissioner of Pub. Safety, 589 N.W.2d 311, 313 (Minn. App. 1999) (the commissioner has the burden of establishing that the chemical test is reliable and that "its administration conformed to the procedure necessary to ensure reliability") (quoting State v. Dille, 258 N.W.2d 565, 567 (Minn. 1977)), review denied (Minn. May 18, 1999). Thus, Rothbart argues that the district court erred in determining that the commissioner met his burden of persuasion with regard to the reliability of the breath test result.

While the commissioner has the burden of establishing the reliability of the breath test, he "does not have an absolute burden to show trustworthiness." Hager v. Commissioner of Pub. Safety, 382 N.W.2d 907, 909 (Minn. App. 1986) (citations omitted). Instead, once the commissioner establishes prima facie proof of the testís reliability, the driver is then free to bring evidence challenging that foundation. Loxtercamp v. Commissioner of Pub. Safety, 383 N.W.2d 335, 337 (Minn. App. 1986), review denied (Minn. May 22, 1986). While the burden of proof switches, the burden of persuasion with respect to the accuracy of the test result always remains with the commissioner. Genung, 589 N.W.2d at 313.

Rothbart admits that the commissioner established a prima facie showing of reliability, but contends she then met her burden of production, which the commissioner failed to rebut. Burden of proof determinations are reviewed independently, on the basis of the facts found, omitting any factual findings that are clearly erroneous. State v. Kulseth, 333 N.W.2d 635, 637 (Minn. 1983). Rothbart contends that she met her burden of production because she was only obligated to suggest a reason why the breath test was untrustworthy. See Ahrens v. Commissioner of Pub. Safety, 396 N.W.2d 653, 655-56 (Minn. App. 1986) (explaining that once a prima facie showing of trustworthy administration has occurred, it is incumbent on the opponent to suggest a reason why the test was untrustworthy). Rothbart argues she was not under any obligation to prove her alcohol concentration was below 0.10 percent. Rather, Rothbart contends she was merely required to present credible evidence that the testing method utilized by the police was untrustworthy. Rothbart suggests that her introduction of her independent test results were sufficient to satisfy her burden of production because her independent test results when combined with the average elimination rate yields a legal alcohol concentration level. Thus, Rothbart contends she sufficiently demonstrated that the initial Intoxilyzer test result was unreliable and that the commissioner was then required to rebut her evidence.

We conclude that Rothbart failed to satisfy her burden of production because she offered no evidence of any occurrence that actually affected the Intoxilyzer test. A driver must produce affirmative evidence impeaching the credibility of the test results. Bielejeski v. Commissioner of Pub. Safety, 351 N.W.2d 664, 666 (Minn. App. 1984). Here, Rothbart only presented evidence that her alcohol concentration level was lower two hours and forty minutes after the Intoxilyzer test was administered. She did not present any evidence about her own elimination rate.

Even if the average elimination rate is utilized, the resulting conclusion that Rothbartís alcohol concentration was below 0.10 does not impugn the trustworthiness of the Intoxilyzer test. See Schwarzrock v. Commissioner of Pub. Safety, 388 N.W.2d 425, 426 (Minn. App. 1986) (rejecting expertís opinion that variations in test results alone called into question the reliability of the tests absent facts which "impugn the validity of the test."). Rather than constituting affirmative evidence of the unreliability of the Intoxilyzer results, the blood test results are merely an invitation to speculation that the breath test results were inaccurate because Rothbart failed to produce any evidence rebutting the expertís testimony that the Intoxilyzer test was reliable and that even if Rothbartís elimination rate was .021 it was well within an acceptable range of figures.

Rothbart claims that her right to due process was violated because the district court impermissibly shifted the burden of persuasion to her. She also argues that the statutory presumption in Minn. Stat. ß 634.16 (1998) allowing the commissioner to make a prima facie case of reliability violates due process where the commissioner utilizes the results of an Intoxilyzer test. Rothbart failed to raise these arguments at the revocation hearing. Thiele v. Stich, 425 N.W.2d 580, 582-83 (Minn. 1998) (generally, matters must be raised and decided in the district court to be considered on appeal). Therefore, these claims are not properly before this court and need not be addressed.

Affirmed.