STATE OF MINNESOTA

IN COURT OF APPEALS

C6-99-1408

State of Minnesota,

Respondent,

vs.

Debra Kay Johnson,

Appellant.

Filed June 13, 2000

Affirmed

Randall, Judge

Blue Earth County District Court

File No. K6-98-2393

Eileen M. Wells, Mankato City Attorney, Christopher D. Cain, Assistant City Attorney, 10 Civic Center Plaza, P.O. Box 3368, Mankato, MN 56002; and

Mike Hatch, Attorney General, 525 Park Avenue, Suite 500, St. Paul, MN 55103 (for respondent)

John M. Stuart, State Public Defender, Lawrence W. Pry, Assistant State Public Defender, 2829 University Avenue Southeast, Suite 600, Minneapolis, MN 55414 (for appellant)

Considered and decided by Amundson, Presiding Judge, Randall, Judge, and Foley, Judge.^*

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

RANDALL, Judge

This is an appeal from a conviction of gross misdemeanor DWI. Appellant argues that because of arresting officer's errors in completing the implied consent form, the state failed to prove that the Intoxilyzer testing procedure was sufficiently reliable or that the officer's testimony about appellant’s intoxication was sufficient to support the conviction. We affirm.

FACTS

On December 26, 1998, Mankato police officer Dan Padilla was called to Buster's Bar in Mankato to investigate a report that a patron was using a fake driver's license. As Padilla was talking to the bouncers, two women walked past him who he thought appeared intoxicated. According to Padilla, the women smelled of an alcoholic beverage, had bloodshot eyes, and walked unsteadily. The women got into a gray Toyota and left the parking lot.

Padilla followed the women and noticed the Toyota weaving in its lane. The vehicle continued to weave and, at one point, struck the curb after passing through an intersection. Padilla turned on his roof lights, but the vehicle did not stop until he activated his siren. Padilla identified the driver as appellant Debra Johnson. He observed that her eyes were bloodshot and her breath smelled of an alcoholic beverage.
When asked if she had anything to drink, Johnson replied that she and her daughter had a few drinks to celebrate her daughter's engagement.

Padilla asked Johnson to get out of the vehicle so he could perform field sobriety tests. In doing the "heel-to-toe walk," Johnson was unable to keep her hands at her side, did not once touch her heel to her toe, and her balance was poor. According to Padilla, Johnson was also belligerent, telling him repeatedly that she knew people in state government and that his job was in jeopardy. Johnson next attempted to do a one-legged stand. She was instructed to keep her hands at her side, hold one leg about six inches off the ground, and to count slowly to 30. She was only able to count to four before putting her leg down.

Johnson was told she was under arrest and transported to jail, where she was read the implied consent advisory. Johnson talked continuously during the process, insisting that she had only three or four drinks. During the walk to the third floor where the Intoxilyzer 5000 was located, Padilla noticed that Johnson was still unsteady. Johnson's alcohol concentration was .21.

As Johnson was led back downstairs to be booked, she continued to talk to Padilla, alternating between crying and being "nasty" and belligerent. She was also described as combative and uncooperative. On more than one occasion, Padilla and another officer, Andrew Konechne, had to restrain Johnson physically from leaving the room. Eventually, Padilla had to handcuff Johnson. Konechne testified that Johnson swayed as she walked, smelled of an alcoholic beverage, had slurred speech, and her mood alternated between self-pity and arguing with the officers.

Johnson was charged in Blue Earth County District Court with gross misdemeanor driving while under the influence with an alcohol concentration of .20 or more (Count I); misdemeanor driving while under the influence of alcohol (Count II); misdemeanor driving while under the influence of alcohol with an alcohol concentration of .10 or more, but less than .20 (Count III); and misdemeanor driving while under the influence of alcohol with an alcohol concentration of .10 or more, but less than .20 within two hours of the time of driving, and driving while under the influence of alcohol with an alcohol concentration of .20 or more within two hours of the time of driving (Count IV).

Johnson did not testify or present any witnesses. Defense counsel elicited admissions from Padilla that he made a number of errors when completing the implied consent form. Padilla admitted that he did not check the box certifying that Johnson had an alcohol level more than .10. Instead, he checked the box stating Johnson had used a Schedule I or II narcotic. He also checked the box certifying that Johnson failed a preliminary breath test (PBT) by having an alcohol level of more than .10. But his testimony revealed that he was unable to obtain an adequate PBT test in the field because Johnson did not blow hard enough into the unit.

A jury convicted Johnson of Counts I and II, but acquitted her of Counts III and IV. Johnson was sentenced to a stayed 180-day jail sentence and placed on probation for two years. The conditions of probation included 30 days in jail and a $500 fine.

D E C I S I O N

Johnson argues the evidence is insufficient to support the jury's verdict. Johnson contends that in light of Padilla's errors in completing the implied consent form, the Intoxilyzer test results and Padilla's observations of her are unreliable and cannot support her conviction.

In reviewing sufficiency of the evidence, this court is limited to a painstaking review of the record to determine whether the evidence, viewed in the light most favorable to the conviction, was sufficient to allow the jury to reach the verdict it did. State v. Webb, 440 N.W.2d 426, 430 (Minn. 1989). This court must assume the jury believed the state's witnesses and disbelieved evidence to the contrary. State v. Moore, 438 N.W.2d 101, 108 (Minn. 1989). The jury's verdict will not be overturned if the jury could reasonably have concluded defendant was guilty of the charged offense, giving due regard for the presumption of innocence and the requirement of proof beyond a reasonable doubt. State v. Alton, 432 N.W.2d 754, 756 (Minn. 1988).

The state establishes the prima facie reliability of the test results when it demonstrates that proper testing procedures were followed and the Intoxilyzer machine indicated that it received adequate samples. State v. Rader, 597 N.W.2d 321, 324 (Minn. App. 1999). Once the state makes a prima facie showing of the reliability of an Intoxilyzer test, "the burden shifts to the driver to introduce evidence of the test's unreliability." Id. at 323 (citation omitted).

Johnson failed to present any evidence that proper testing procedures were not followed or that the tests samples received by the Intoxilyzer machine were inadequate. Although Johnson was able to elicit testimony from Padilla that he mismarked certain boxes on the implied consent form, she concedes that the state made a prima facie showing of the test's reliability. With that in place, it became her burden to introduce evidence of the test's unreliability. Johnson made no showing that Padilla's errors affected the reliability of the Intoxilyzer test results. Thus, she failed to rebut the presumption that the test results were reliable. We conclude that the evidence was sufficient to allow the jury to reasonably find beyond a reasonable doubt that Johnson was driving her vehicle with an alcohol concentration of .20 or more.

Similarly, Johnson's conviction under Minn. Stat. § 169.121, subd. 1(a) (1998), is not dependent on the results of chemical testing. This section provides that it is a crime for a person to drive, operate, or be in physical possession of a motor vehicle "when the person is under the influence of alcohol." Minn. Stat. § 169.121, subd. 1(a).

The state presented evidence from both Padilla and Konechne that Johnson's eyes were bloodshot, that she smelled strongly of an alcoholic beverage, that her speech was slurred, that she walked unsteadily, and that her driving conduct was unstable.

There was no evidence impeaching the credibility of Konechne or the reliability of his observations. We find the evidence sufficient to allow the jury to conclude that Johnson was driving while under the influence of alcohol.

The arguments presented in Johnson's pro se supplemental brief were considered, but do not change our decision.

Affirmed.

^* Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to Minn. Const. Art. VI, § 10.