In Re the Marriage of: Roger Lloyd Nelson, petitioner, Appellant, vs. Verla Mae Nelson, Respondent.

This opinion will be unpublished and

may not be cited except as provided by

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

STATE OF MINNESOTA

IN COURT OF APPEALS

C8-99-2009

Ian Thomas Anderson,
petitioner,
Respondent,
 
vs.
 
Commissioner of Public Safety,
Appellant.

Filed May 23, 2000

Reversed
Foley, Judge*

Hennepin County District Court

File No. IC 477547

Harlan M. Goulett, 700 Lumber Exchange Building, 10 South Fifth Street, Minneapolis, MN  55402 (for respondent)

Mike Hatch, Attorney General, Sheila M. Fitzgerald, Assistant Attorney General, 525 Park St., Suite 500, St. Paul, MN  55103 (for appellant)

Considered and decided by Amundson, Presiding Judge, Anderson, Judge, and Foley, Judge.

U N P U B L I S H E D   O P I N I O N

FOLEY, Judge

The Commissioner of Public Safety appeals the district court's decision setting aside respondent's driver's license revocation.  The district court erred as a matter of law in finding the urinalysis unreliable because respondent had not completely voided his bladder before undergoing testing.  We reverse.

            After being stopped by a state trooper on suspicion of driving while intoxicated, respondent Ian Anderson submitted to a urinalysis, which determined his alcohol concentration was .14, resulting in the revocation of his license under the implied consent law, Minn. Stat. § 169.123, subd. 4(e) (1998).  At his license revocation hearing, respondent presented expert testimony that his urinalysis was not scientifically sound because the officer did not require respondent to void his bladder once before producing a sample for urinalysis, and respondent had not voided his bladder for more than two hours before the urinalysis. Respondent's expert maintained that the failure to require a voiding results in a "pooled" sample, which is not an accurate measure of the individual's alcohol concentration at the time of the sample collection. 

            The district court apparently found that all proper procedures had been followed when the officer administered the urinalysis:  the sample kit used for the urinalysis was "normal in all respects," the officer had followed the required directions, and the officer had properly sealed the kit and sent it for analysis.  Nonetheless, the district court found that the urinalysis sample was inaccurate because respondent did not void his bladder completely before submitting the sample.  The district court therefore concluded that the commissioner had not sustained its burden proving that the urinalysis was reliable.

Conclusions determining burden of proof "are reviewed independently, on the basis of the facts found, omitting any factual findings that are clearly erroneous."  Genung v. Commissioner of Pub. Safety, 589 N.W.2d 311, 313 (Minn. App. 1999), review denied (Minn. May 18, 1999).  Whether a district court's "findings support the conclusions of law and judgment is a question of law for the reviewing court to determine."  Harris v. American Family Mut. Ins. Co., 480 N.W.2d 690, 691 (Minn. App. 1992), review denied (Minn. Mar. 26, 1992) (citation omitted).

Here, the district court found that "it is necessary to use urine that has been freshly produced by the body" to obtain an accurate measure of alcohol concentration in the urine and that analyzing urine that has been collecting in the bladder for a few hours results in a flawed sample.  The conclusion from these findings, that a urinalysis of a driver who has not voided his or her bladder recently is unreliable, is inconsistent with previous decisions of this court.  This court has held that where an officer follows the Bureau of Criminal Apprehension (BCA) urinalysis procedures, which "do not require voiding once before producing the test sample," in obtaining a urinalysis sample, such procedures "have been found to ensure reliability."[1]  Genung, 589 N.W.2d at 313; see also City of Springfield v. Anderson, 411 N.W.2d 292, 293-94 (Minn. App. 1987) (expressing the court's unwillingness to add a void-the-bladder requirement to the urinalysis testing when it upheld a trial court's decision to refuse to allow expert testimony regarding voiding the bladder before testing).

Any remedy for respondent's claim that his urinalysis was unreliable because he had not voided his bladder for more than two hours should be addressed to the legislature, as we have previously upheld the reliability of urinalyses conducted according to BCA procedures, which do not require the subject to void his or her bladder before testing. There is nothing in the facts on the record that would compel the adoption of the testimony of respondent's expert.  As an error-correcting court, it is not for us to graft a new procedural requirement, particularly one we have already rejected, onto a BCA-approved practice that we have previously determined to be reliable.

Reversed.

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

[1] Respondent maintains that Genung is distinguishable because in that case, the driver first attempted to give a sample and was unable to do so until drinking several glasses of water; this, respondent suggests, indicates that Genung had already voided his bladder.  But the court in Genung specifically stated that its decision was not based on the fact that appellant was not at first able to provide a sample.  Genung, 589 N.W.2d at 313, n.1.