Debra Jean Kruschke, petitioner, Appellant, vs. Commissioner of Public Safety, Respondent. C7-97-909, Court of Appeals Unpublished, November 10, 1997.

This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (1996).

STATE OF MINNESOTA

IN COURT OF APPEALS

C7-97-909

Debra Jean Kruschke,

petitioner,

Appellant,

vs.

Commissioner of Public Safety,

Respondent.

Filed November 10, 1997

Affirmed

Foley, Judge^*^*

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

McLeod County District Court

File No. C0-97-142

Richard L. Swanson, 1059 Stoughton Avenue, P.O. Box 85, Chaska, MN 55318 (for Appellant)

Hubert H. Humphrey III, Attorney General, Peter R. Marker, Assistant Attorney General, 525 Park Street, Suite 200, St. Paul, MN 55103-2106 (for Respondent)

Considered and decided by Short, Presiding Judge, Parker, Judge, and Foley, Judge.

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

FOLEY, Judge

Appellant Debra Jean Kruschke challenges a district court order sustaining the revocation of her driver's license under the implied consent statute, Minn. Stat. § 169.123 (1996), contending that (1) the officer did not have reasonable grounds to stop her vehicle, (2) her right to counsel was not vindicated, and (3) the commissioner did not meet his burden in establishing the reliability of the Intoxilyzer test. We affirm.

FACTS

Appellant was arrested for DWI after her vehicle was stopped for failure to stop at a stop sign. At the police station, appellant submitted to an Intoxilyzer breath test. Before administering the test, the officer read appellant the implied consent advisory and asked her if she wanted to consult an attorney. Appellant replied, "No, not right now," and agreed to take the breath test. The officer administering the test neglected to write down the simulator temperature on the test record.

D E C I S I O N

1. Accuracy of Intoxilyzer Test Results

Generally, a reviewing court will consider only those issues presented and decided by the trial court. Thiele v. Stich, 425 N.W.2d 580, 582 (Minn. 1988).

At the trial court hearing, appellant's counsel told the court there were only two issues: validity of the stop and right to counsel. The results of the Intoxilyzer test came in by stipulation. The trial court heard testimony on the accuracy of the Intoxilyzer test, but appellant did not make any argument about its validity, nor did the trial judge make a ruling on that issue. The only mention of the Intoxilyzer by the trial court was in the findings of fact where the judge noted:

[A] representative of the Bureau of Criminal Apprehension testified that the Deputy's failure to write the temperature on the blank form provided did not invalidate the test. He further testified that there was nothing to indicate that the test was inaccurate.

Because appellant did not argue this issue at trial, it is not properly before the court. Nonetheless, this court observes that the evidence supports the trial court's finding that the test was accurate and reliable.

2. Other Issues

Appellant's claim that the stop was invalid fails because appellant was stopped for failure to stop at a stop sign. Observing a traffic violation is a valid basis for a stop. State v. George, 557 N.W.2d 575, 578 (Minn. 1997). Appellant's claim that her right to counsel was not vindicated also fails because she replied "No, not right now," when asked if she wanted to consult an attorney. Thus, appellant's own waiver vindicated her right to counsel.

Affirmed.