Lorenzo (NMN) Johnson, petitioner, Appellant, vs. State of Minnesota, Respondent.

This opinion will be unpublished and
may not be cited except as provided by Minn. Stat. § 480 A. 08, subd. 3 (1996).

STATE OF MINNESOTA
IN COURT OF APPEALS
C3-98-559, C1-98-561
C5-98-658, CX-98-865

Mark Clement LePage, petitioner,
Appellant (C3-98-559),

Jimmy Alan Richardson, petitioner,
Appellant (C1-98-561),

Gust Kempf, Jr., petitioner,
Appellant (C5-98-658),

Kevin Eugene Fredrickson, petitioner,
Appellant (CX-98-865)

vs.

Commissioner of Public Safety,
Respondent.

Filed October 20, 1998
Affirmed
Holtan, Judge*

Hennepin County District Court
File No. IC 475 575
Ramsey County District Court
File No. C9-97-9784
Washington County District Court
File No. C3-97-5410
St. Louis County District Court
File No. C8-97-301150

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

Hubert H. Humphrey III, Attorney General, Joel A. Watne, Assistant Attorney General, 525 Park Street, Suite 200, St. Paul, MN 55103-2106 (for respondent)

Considered and decided by Huspeni, Presiding Judge, Norton, Judge,** and Holtan, Judge.

U N P U B L I S H E D   O P I N I O N

HOLTAN, Judge

Appellants challenge district court orders sustaining the revocation of their driver's licenses. They argue the commissioner failed to establish that their alcohol concentration was .10 or more at the time the Intoxilyzer collected an adequate sample and that their due process rights were violated because the police officers had the discretion to require appellants to continue blowing in the Intoxilyzer after the machine indicated an adequate sample. We affirm.

FACTS

All appellants were arrested for driving while under the influence of alcohol, all submitted to an Intoxilyzer test, and all registered an alcohol concentration of .10 or more. Appellants' driver's licenses were revoked, and after an implied consent hearing, the district court sustained all of the revocations. Appellants each filed a notice of appeal. Because appellants raise identical issues, this court consolidated all four appeals.

D E C I S I O N

Conclusions of law shall 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).

Appellants argue that the commissioner failed to establish that their alcohol concentration was .10 or more at the time the Intoxilyzer received an adequate sample and that, therefore, the district courts' decisions sustaining the revocation of their licenses should be reversed. Appellants insist that when the Intoxilyzer receives an adequate sample, a zero appears left of the decimal point on the machine's display screen and that if a person continues to blow into the machine after the zero appears, the measured alcohol concentration will continue to rise. An identical argument was made in Brooks v. Commissioner of Pub. Safety, ___ N.W.2d ___, ___, 1998 WL 643336, at *1 (Minn. App. Sept. 22, 1998), and this court rejected it, relying on Weierke v. Commissioner of Pub. Safety, 578 N.W.2d 815, 816 (Minn. App. 1998), where a similar issue was raised.

Appellants also raise procedural and substantive due process arguments. The constitutionality of a state action is a question of law reviewed de novo. Cohen v. Little Six, Inc., 543 N.W.2d 376, 378 (Minn. App. 1996), aff'd, 561 N.W.2d 889 (Minn. 1997), cert. denied, 118 S. Ct. 2059 (1998). The due process arguments raised here are identical to the due process arguments raised and rejected in Brooks, ___ N.W.2d at ___, 1998 WL 643336 at *3-*5. Consequently, appellants cannot prevail.

Affirmed.

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

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