This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (1998).

STATE OF MINNESOTA

IN COURT OF APPEALS

C9-98-825

State of Minnesota,

Respondent,

vs.

Tony Michael Pruyn,

Appellant.

Filed January 26, 1998

Affirmed

Mulally, Judge[*]

Hennepin County District Court

File No. 97092845

Michael A. Hatch, Attorney General, 1400 NCL Tower, 445 Minnesota Street, St. Paul, MN 55155; and

Michael J. Colich, St. Louis Park City Attorney, Darren C. Borg, Assistant City Attorney, 420 Lumber Exchange Building, 10 South Fifth Street, Minneapolis, MN 55402 (for respondent)

Samuel A. McCloud, Kelly Vince Griffitts, Suite 1000, Circle K, Box 216, Shakopee, MN 55379 (for appellant)

Considered and decided by Toussaint, Chief Judge, Crippen, Judge, and Mulally, Judge.

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

MULALLY, Judge

Appellant Tony Michael Pruyn challenges his gross misdemeanor conviction for driving with an alcohol concentration of .10 or more, in violation of Minn. Stat. §§ 169.121, subd. 1 (d), subd. 3(c) (1) (1996). Pruyn argues that the state failed to establish that his alcohol concentration was .10 or more at the time the Intoxilyzer collected an adequate sample and that his due process rights were violated because the police officers had the discretion to require him to continue blowing after the Intoxilyzer indicated an adequate sample. We affirm.

FACTS

Appellant was arrested for driving while under the influence of alcohol and submitted to an Intoxilyzer test. The Intoxilyzer recorded an alcohol concentration of .16. Appellant agreed to a bench trial on stipulated facts, which included the following: (1) the officer had appellant blow into the Intoxilyzer for three to four seconds past the time the Intoxilyzer displayed a zero; (2) officers are instructed by the BCA (Bureau of Criminal Apprehension) to inform test subjects to cease blowing into the Intoxilyzer machine when the zero appears; (3) if the subject continues to blow into the Intoxilyzer after the zero is displayed, the alcohol-concentration reading will continue to rise until he stops blowing or until the maximum alcohol concentration contained in his breath is reached; and (4) appellant's alcohol concentration was measured at .16. The district court found appellant guilty of driving with an alcohol concentration of .10 or more.

D E C I S I O N

Conclusions of law will not be overturned on appeal unless the district court erred in construing and applying the law to the facts of the case. Dehn v. Commissioner of Pub. Safety, 394 N.W.2d 272, 273 (Minn. App. 1986). We note at the outset that appellant's arguments are identical to those raised in Brooks v. Commissioner of Pub. Safety, 584 N.W.2d 15 (Minn. App. 1998), review denied (Minn. Nov. 24, 1998).

I.

Appellant first argues that the state failed to establish that his alcohol concentration was .10 or more at the time the Intoxilyzer received an adequate sample, as indicated by a zero display. The statute governing Intoxilyzer testing deems a sample adequate "if the instrument analyzes the sample and does not indicate the sample is deficient." Brooks, 584 N.W.2d at 17 (quoting Minn. Stat. § 169.123, subd. 2b(b) (1996)); see also Weierke v. Commissioner of Pub. Safety, 578 N.W.2d 815, 816 (Minn. App. 1998) (noting that statute does not indicate sample may not be larger than minimum to be adequate). The sample amount that registers when the Intoxilyzer's display indicates zero is not a final test under the statute. Brooks, 584 N.W.2d at 17.

Appellant argues that Brooks and Weierke are not controlling because, in this case, the state stipulated that the alcohol-concentration reading will continue to rise if the subject continues to blow and the officers do not follow BCA instructions. We disagree. "[A]ppellant has not shown that a quantity of breath greater than the minimum * * * inaccurately reflects the actual alcohol concentration in the body." Weierke, 578 N.W.2d at 816. In fact, appellant stipulated that the reading would only rise until it reached the alcohol-concentration contained within the subject's breath. Moreover, appellant has not demonstrated that the officer's failure to tell him to cease blowing prejudiced his interests. BCA regulations provide that an Intoxilyzer "sample accepted as valid by the instrument is considered adequate." Minn. R. 7502.0430, subpt. 2 (1997). Here, the Intoxilyzer accepted the samples and delivered an alcohol concentration measurement of .16, which clearly exceeded the statutory limit of .10.

II.

Appellant challenges his conviction on due process grounds. We have already concluded that administration of the Intoxilyzer test does not violate substantive and procedural due process rights because no fundamental unfairness or deprivation of private interest has been demonstrated. See Brooks, 584 N.W.2d at 18-29. We therefore reject identical arguments made here.

Appellant also raises a Brady due process challenge, arguing that allowing an operator to require a subject to continue blowing into the Intoxilyzer after a zero display is equivalent to the destruction of evidence. See Brady v. Maryland, 373 U.S. 83, 87, 83 S. Ct. 1194, 1196-97 (1963) (prosecution's suppression of material evidence violates due process rights); State v. Schmid, 487 N.W.2d 539, 541 (Minn. App. 1992), review denied (Minn. Sept. 15, 1992) (Due Process Clause prohibits the destruction of material exculpatory evidence). Brady is applicable in criminal proceedings. Brooks, 584 N.W.2d at 20. Nevertheless, our review of the record reveals that appellant failed to raise the Brady doctrine or destruction of exculpatory evidence issue in the district court proceeding. We decline to address constitutional issues raised for the first time on appeal. State v. Sorenson, 441 N.W.2d 455, 457 (Minn. 1989).

Affirmed.

[*] Retired judge of the district court, serving as judge of Minnesota Court of Appeals by appointment pursuant to Minn. Const. art. VI, § 10.