A05-331

State of Minnesota,

Respondent,

vs.

Kristopher Joseph Sabas,

Appellant.

Filed March 28, 2006

Affirmed

Worke, Judge

Hennepin County District Court

File No. 04077437

Mike Hatch, Attorney General, 1800 Bremer Tower, 445 Minnesota Street, St. Paul, MN 55101; and

Paul D. Baertschi, Tallen & Baertschi, 4560 IDS Center, 80 South Eighth Street, Minneapolis, MN 55402 (for respondent)

Stephen V. Grigsby, 2915 South Wayzata Boulevard, Suite 101, Minneapolis, MN 55405 (for appellant)

Considered and decided by Dietzen, Presiding Judge; Wright, Judge, and Worke, Judge.

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

WORKE, Judge

On appeal from a conviction for fourth-degree DWI, appellant argues that the district court abused its discretion and denied appellant’s right to confrontation by admitting Intoxilyzer results, which depend on the accuracy of the simulator solution, without reference to any exception to the hearsay rule. We affirm.

D E C I S I O N

“Evidentiary rulings rest within the sound discretion of the [district] court and will not be reversed absent a clear abuse of discretion. On appeal, the appellant has the burden of establishing that the [district] court abused its discretion and that appellant was thereby prejudiced.” State v. Amos, 658 N.W.2d 201, 203 (Minn. 2003) (citations omitted). Appellant Kristopher Joseph Sabas argues that the district court abused its discretion in admitting Intoxilyzer results and violated his constitutional right to confrontation because the test results depend on the accuracy of the simulator solution and that all of the knowledge regarding the simulator solution was hearsay.

“The proponent of a chemical or scientific test must establish that the test itself is reliable and that its administration in the particular instance conformed to the procedure necessary to ensure reliability.” State v. Dille, 258 N.W.2d 565, 567 (Minn. 1977). The results of a breath test, when performed by a trained person, are admissible without expert testimony that an approved breath-testing instrument provides a trustworthy and reliable measure of the alcohol in the breath. Minn. Stat. § 634.16 (2004). Under Minnesota law, the state does not have an affirmative burden to produce records that the particular machine used in a breath test was in working order, was reliable, and was accurate. See Ahrens v. Comm’r of Pub. Safety, 396 N.W.2d 653, 656 (Minn. App. 1986) (stating that the commissioner of public safety is not required to produce such records in a revocation proceeding).

Here, the officer testified that he received week-long training on the Intoxilyzer 5000 from the Minnesota Bureau of Criminal Apprehension (BCA) and received a certificate of completion. The officer also testified that the particular machine used to test appellant’s breath was in working order, reliable, and accurate. The officer then testified that someone at the BCA tests the simulator solution to deem it to be of a certain alcohol concentration. Appellant objected, arguing that the test results were inadmissible because the officer did not have personal knowledge of the simulator solution. The officer testified that the solution is tested at the BCA for known alcohol concentration, placed in bottles, labeled to indicate the control group from which the solution was drawn, packaged, sealed, and delivered to police departments. The district court overruled appellant’s objection, ruling that the state’s burden did not require presentation of expert testimony on the reliability of the breath-testing method or the reliability of the Intoxilyzer-test method. The district court further ruled that the statutory requirements had been met because the officer was properly trained and testified that the Intoxilyzer was functioning properly and performed all of the necessary calibrations to provide an accurate reading.

Appellant has not provided a reason why the test was untrustworthy; therefore, the district court did not abuse its discretion in admitting the test results because the officer’s testimony demonstrated that the Intoxilyzer test was performed by a trained person. See Ahrens, 396 N.W.2d at 655-56 (stating that a prima facie showing of trustworthy administration of an Intoxilyzer is established by demonstrating that the test was performed by a properly trained person, it is then incumbent on the opponent to suggest a reason why the test was untrustworthy). Further, the officer testified that the solution is received from the BCA in sealed bottles. In Dille, the defendant argued that the district court erred in admitting blood-test results because no proper foundation was laid with respect to the test’s reliability. Dille, 258 N.W.2d at 567. The supreme court held that “the fact that the bottle and its contents were furnished as a blood-testing kit by the [BCA] provided a sufficient indicium of reliability to establish the prima facie admissibility of the test results.” Id. at 568. A similar situation is present here, where reliability has been established by receipt of the sealed bottles of solution from the BCA.

Appellant also argues that his constitutional right to confrontation was violated. In State v. Jensen, 351 N.W.2d 29, 32-33 (Minn. App. 1984), this court concluded that business records establishing that a breathalyzer test was working properly did not pose a confrontation problem because they were “merely collateral evidence of the reliability of the breathalyzer test.” A similar situation exists here. Further, in State v. Birk, 687 N.W.2d 634, 637 (Minn. App. 2004), the state did not present expert testimony on the reliability of the method used by the Intoxilyzer in measuring the amount of alcohol in the defendant’s breath. The defendant argued that without expert testimony, the jury could have found the test method reliable only by presuming that a test used by police must be reliable. Birk, 687 N.W.2d at 637. This court noted that the Intoxilyzer correctly measured the room air sample and measured the defendant’s two breath samples at nearly the same alcohol concentration. Id. Additionally, the officer’s observations of indicia of intoxication and the defendant’s performance in the field sobriety tests tended to corroborate the test readings. Id. This court concluded that all of this evidence showed that the test method used by the Intoxilyzer was a reliable means of measuring breath alcohol. Id.

Here, the arresting officer observed appellant driving in a “weaving” pattern and over a curb. While speaking with appellant, the officer detected a strong odor of an alcoholic beverage coming from him and noticed that appellant’s eyes were bloodshot and glassy. Appellant was uncooperative during field sobriety tests and told the officer that he had a good lawyer and did not need to take any of the tests, which were discontinued. Although appellant denied consuming any alcoholic beverage, he agreed to take a preliminary breath test which registered a .137 on the digital Alco-sensor. Additionally, the Intoxilyzer measured appellant’s two breath samples at the same alcohol concentration (.142). All of this information tended to support the reliability of the Intoxilyzer results. Thus, the district court’s admission of the test results did not violate the Confrontation Clause.

Affirmed.