State of Minnesota, Respondent, vs. Glen Allan Bergman, Appellant.

may not be cited except as provided by

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

STATE OF MINNESOTA

IN COURT OF APPEALS

C2-97-1563

State of Minnesota,

Respondent,

vs.

Glen Allan Bergman,

Appellant.

Filed April 28, 1998

Affirmed

Foley, Judge*

Itasca County District Court

File No. K3-96-656

Hubert H. Humphrey III, Attorney General, Deborah R. Peterson, Assistant Attorney General, 1400 NCL Tower, 445 Minnesota St., St. Paul, MN 55101; and

John J. Muhar, Itasca County Attorney, 123 Fourth Street N.E., Grand Rapids, MN 55744 (for respondent)

John J. Leunig, John J. Leunig & Associates, The Interchange Tower, Suite 1690, 600 South Highway 169, Minneapolis, MN 55426 (for appellant)

Considered and decided by Toussaint, Chief Judge, Foley, Judge, and Mulally, Judge.*

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

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

FOLEY, Judge

After a drunk driving accident that killed Mildred Louise Lintner and her unborn child, appellant Glen Allan Bergman was convicted of criminal vehicular homicide, criminal vehicular operation resulting in death to an unborn child, and driving after revocation. He was sentenced to seven years and four months in prison. On appeal, he seeks reversal of his convictions. We affirm.

D E C I S I O N

Appellant argues that a blood sample taken two hours after the accident, which showed his blood alcohol content to be .19 (nearly twice the legal limit), was obtained without his consent and should have been suppressed.

Appellant's lack of consent to the blood test is irrelevant. An involuntary blood or urine test may be ordered when police have probable cause to believe a subject was driving while under the influence and "has been involved in a motor vehicle accident or collision resulting in property damage, personal injury, or death." Minn. Stat. § 169.123, subd. 2(a) (1996).

Probable cause exists where all the facts and circumstances would warrant a cautious person to believe that the suspect was driving or operating a vehicle while under the influence.

Johnson v. Commissioner of Pub. Safety, 366 N.W.2d 347, 350 (Minn. App. 1985). When police arrived at the accident scene, appellant admitted that he had been drinking earlier, his eyes were red and watery, and his breath smelled strongly of alcohol. There obviously had been an accident resulting in personal injury or death. Appellant had no right to refuse testing under these circumstances.

Likewise, no warrant is required when police have probable cause to believe a subject was driving while under the influence and removal of the subject's blood is necessary to preserve evidence of guilt. State v. Nielsen, 530 N.W.2d 212, 214 (Minn. App. 1995), review denied (Minn. June 14, 1995). Appellant's objection to admission of the blood test evidence is wholly without merit. There was no error. II.

Appellant argues that his convictions should be reversed because the state did not make the vehicles involved in the accident available for inspection prior to trial. When loss or destruction of material evidence is alleged, this court considers

(1) whether the destruction was intentional; (2) the strength of the State's case even if the evidence was available; and (3) the possible exculpatory value of the lost or destroyed evidence.

State v. Harris, 407 N.W.2d 456, 460 (Minn. App. 1987), review denied (Minn. July 31, 1987). None of these factors supports reversal of appellant's convictions.

As an initial matter, neither vehicle was lost, destroyed, or otherwise made unavailable to appellant before trial. After the accident, both vehicles were taken to an impound lot. Lintner's vehicle was released to a salvage yard in Duluth one month later. Appellant's vehicle was sold to a party in Thunder Bay, Ontario, three months after the accident. There is no evidence that the state intended, by releasing the damaged vehicles, to intentionally deprive appellant of an opportunity to examine or inspect them. The state told appellant where to find Lintner's vehicle four months before trial and where to find his own vehicle more than two months before trial. Both vehicles were available for inspection, and neither was compacted or otherwise destroyed. Two months before trial, appellant's counsel expressed his intent to send an expert mechanic to examine the vehicles, but evidently never did so. Appellant cannot blame the state for his own failure to examine the vehicles.

Further, appellant would likely have been convicted even if he had inspected both vehicles before trial. Appellant admitted that at the time of the accident, he had been driving at a high speed, while extremely intoxicated. An accident reconstructionist's report, the substance of which appellant does not dispute, showed that appellant's vehicle crossed the centerline by more than five feet before striking Lintner's vehicle head-on at the crest of a hill. Where, as here, substantial evidence supports a conviction, we will not overturn that conviction simply because certain other evidence may have been unavailable to appellant. See State v. Schmid, 487 N.W.2d 539, 542 (Minn. App. 1992) (destruction of taped interview with victim did not justify new trial where other substantial evidence supported conviction), review denied (Minn. Sept. 15, 1992); State v. Nelson, 399 N.W.2d 629, 632-33 (Minn. App. 1987) (accidental erasure of videotaped sobriety test did not justify acquittal or dismissal, where breath test evidence supported DWI conviction), review denied (Minn. Apr. 17, 1987).

Finally, the exculpatory value of the damaged vehicles is entirely speculative. This court will not overturn a conviction where the potential exculpatory value of other evidence is based entirely upon speculation. Nelson, 399 N.W.2d at 633. The strength of the existing evidence against appellant tends to minimize the exculpatory potential of the damaged vehicles. See id. (presence of strong evidence against defendant minimizes likelihood that other evidence would be exculpatory). There was no error justifying reversal of appellant's convictions.

Affirmed.