This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (2004).

 

STATE OF MINNESOTA

IN COURT OF APPEALS

A06-391

 

Charles Harold Connelly, petitioner,

Appellant,

 

vs.

 

Commissioner of Public Safety,

Respondent.

 

Filed December 19, 2006

Affirmed

Shumaker, Judge

 

Wabasha County District Court

File No. CO-05-354

 

 

Samuel A. McCloud, Carson J. Heefner, McCloud & Boedigheimer, P.A., Suite 1000, Circle K., Post Office Box 216, Shakopee, MN 55379 (for appellant)

 

Mike Hatch, Attorney General, Melissa J. Eberhart, Assistant Attorney General, 1800 Bremer Tower, 445 Minnesota Street, St. Paul, MN 55101 (for respondent)

 

 

 

            Considered and decided by Shumaker, Presiding Judge; Hudson, Judge; and Crippen, Judge.*

 

 

U N P U B L I S H E D   O P I N I O N

SHUMAKER, Judge

Appellant challenges the district court’s order sustaining the revocation of his driver’s license after an implied-consent hearing on the ground that the foundation for the admission of Intoxilyzer test results was inadequate.  Because the court did not abuse its discretion in its receipt of the test results over a foundational objection, we affirm.

FACTS

            Appellant Charles Connelly was arrested for driving his vehicle while impaired.  He agreed to take an Intoxilyzer 5000 breath test.  It yielded a final result of .10 alcohol concentration.  Connelly’s driving privileges were then revoked and he challenged the revocation at an implied-consent hearing.  The district court sustained the revocation.  Connelly claims this was error.

            The record shows that two deputy sheriffs participated in the testing procedures.  Deputy Sturgis, the arresting officer, observed Connelly continuously for at least 15 or 20 minutes immediately before the Intoxilyzer was administered.  Sturgis had no specific training as to what to look for during that period other than the subject’s consumption of “other beverages, food, anything that would impair the test.”  He did not recall whether Connelly burped or belched during the observation period.

            The second officer, Deputy Bade, was a certified Intoxilyzer operator.  He noted that Connelly did not burp, belch, or vomit during the administration of the test itself, but he relied on Sturgis to conduct the preliminary observation.  Bade testified that, for a proper test, there must be a 15-minute observation of the subject immediately before the test and during that period the observing officer is supposed to look to see whether the subject burps, belches, or vomits.  Bade testified that the test itself was done properly and, in his opinion, produced an accurate result.

            Connelly did not present any evidence that he burped or belched during the preliminary observation period or during the administration of the test.

D E C I S I O N

            Connelly frames the issue he raises on appeal as follows: “The issue in this case is whether the required observation period, conducted by a police officer who has no training in that regard, was sufficient to meet the commissioner’s burden of demonstrating that the test conformed with the procedures necessary to ensure reliability.”  He then contends that “the observation period in this case was insufficient as a matter of law.”  Connelly does not challenge the reliability of the test per se but rather argues that the foundation was inadequate as a matter of law to even admit the test results into evidence.

            Although Connelly appears to contend that the issue on appeal presents a question of law, his challenge is directed at the admissibility of evidence.  “A trial court’s decision as to the admissibility of evidence will not be disturbed absent an abuse of discretion.”  Scheper v Comm’r of Pub. Safety, 380 N.W.2d 222, 223 (Minn. App. 1986) (citation omitted).  The adequacy of foundation for the admissibility of evidence, being an evidentiary question, lies within a trial court’s sound discretion.  See Johnson v. Washington County, 518 N.W.2d 594, 601 (Minn. 1994) (quotation omitted) (stating evidentiary rulings regarding “materiality, foundation, remoteness, relevancy, or the cumulative nature of the evidence” will not be reversed absent a clear abuse of discretion).  But chemical-test results of alcohol concentration in the human body are not admissible without foundational evidence showing prima facie that the test was reliable.  Roettger v. Comm’r of Pub. Safety, 633 N.W.2d 70, 74 (Minn. App. 2001).  Thus, a complete absence of the requisite foundation for the admissibility of test results would compel the exclusion of those results, unless the opponent waives a foundational objection.  See Jones v. Fleischhacker, 325 N.W.2d 633, 639 (Minn. 1982) (holding a claim of error in admission of evidence can be waived by failing to make timely objection).  If a trial court receives the test results without foundation and over the opponent’s objection, the court thereby abuses its discretion.  It is this conclusion, namely, that the trial court here received and relied upon evidence of Connelly’s Intoxilyzer test without first requiring adequate foundation, that Connelly urges us to accept on appeal.

            Connelly acknowledges that once adequate foundation has been laid to show prima facie reliability of the Intoxilyzer results, the burden of going forward with the evidence shifts to the opponent to demonstrate the untrustworthiness of the test results.  Id.

            In resolving the foundational issue, the district court relied on Israel v. Comm’r of Pub. Safety, 400 N.W.2d 428 (Minn. App. 1987), and Scheper.  The court also rejected Connelly’s proffered authority, McGregor v. Comm’r of Pub. Safety, 386 N.W.2d 339 (Minn. App. 1986).

            In Scheper, as here, the appellant did not challenge the reliability of the Intoxilyzer but rather argued that because the officer who observed the appellant “did not know that he should watch for indications that Scheper belched, the procedure necessary to ensure the test’s reliability was not followed, and, therefore, proper foundation was not laid.”  Scheper, 380 N.W.2d at 224.

            We rejected the challenge in Scheper, holding that, despite the observing officer’s lack of knowledge that he should look for belching or burping, the foundation, which showed continuous observation for 15 to 20 minutes before the test, was sufficient to establish prima facie reliability of the test and to shift the burden of producing evidence of untrustworthiness to the opponent.  Id.

            In Israel, the observing officer watched the appellant for 15 to 20 minutes prior to the administration of the Intoxilyzer test but was not watching for burping or similar behavior.  Israel, 400 N.W.2d at 429.  Relying on Scheper, we held that the foundation that was laid was sufficient to shift the burden to the opponent to go forward with evidence of untrustworthiness.  Id.

            McGregor presented facts that make that case distinguishable from Scheper and Israel.  The officer in McGregor did not know the purpose of the observation period and was not told what to watch for.  Additionally, the officer did not maintain continuous observation of the appellant for 15 minutes prior to the test.  McGregor, 386 N.W.2d at 340.  We did agree with the trial court that “where the officer had no understanding of the purpose of the procedure . . .” it was “impossible to ensure the reliability of the test.”  Id. at 341.

            In Scheper, Israel, and here, the officers observed the subject continuously for at least 15 minutes, and they had an understanding that they needed to watch for some behaviors during that period.  Connelly argues, however, that if the observing officer is not trained to look for all behaviors that could affect the test, then foundation for the test results is inadequate.

            Surely there is logic in Connelly’s approach, but this court has held otherwise and has instead relied on burden-shifting to ensure the ultimate reliability of the test results.

            Thus, Connelly’s foundational challenge is addressed and resolved by precedent, and the district court did not abuse its discretion by applying precedent to the facts adduced at the implied-consent hearing.

            There is an additional reason for our holding.  It appears that neither Israel, Scheper, nor McGregor indicates how burping or belching during the observation period might affect the test result, and the driver in these cases, as in this case, failed to present any evidence that he burped or belched during the observation period.  Connelly presents the issue as an absolute: The failure of the observing officer to watch for belching or burping makes the test results inadmissible because reliability of the test cannot then be established.  But that proposition depends on an assumption that has not been demonstrated on this record, namely, that a burp or belch will necessarily skew the test results if it occurs within 15 minutes immediately prior to the test.  Without some evidence of how and why this is so and without some explanation of how the timing of the burp or belch might be significant to the test, we are asked to require as a critical component of foundation the need to observe specifically for burps and belches.  Unless we know that such behaviors, no matter how and when they occur during the observational period, can truly undermine the reliability of the test, we cannot properly hold that adequate foundation must include an understanding of the need to look for those behaviors.  Nothing in this record, or in the prior cases cited by the parties, provides this information.

            Finally, Connelly argues that the court erred when it sustained the commissioner’s objection to Connelly’s inquiry of the arresting officer as to what his field-training officer’s own training regarding the observation period was.  The ruling was not erroneous.  The issue was what the observing officer knew about what he was to look for, and that was the proper focus of inquiry.  The court allowed that inquiry.  How the officer knew what to do and whether he or someone else was trained in that regard would not be relevant, at least in the context of the issue being explored during the hearing.

            Affirmed.