State of Minnesota, Respondent, vs. Kevin Richard Litzau, Appellant.

This opinion will be unpublished and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

C2-99-2099

Jason Patrick Hinchliff,
petitioner,
Appellant,
 
vs.
 
Commissioner of Public Safety,
Respondent.

Filed May 30, 2000

Reversed and remanded
Foley, Judge*

Washington County District Court

File No. C2-99-2325

John C. Brink, Daniel L. Gerdts, Suite 840, 401 Second Avenue S., Minneapolis, MN 55401 (for appellant)

Mike Hatch, Attorney General, Peter R. Marker, Assistant Attorney General, 525 Park St., Suite 500, St. Paul, MN  55103 (for respondent)

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

            Appellant disputes the trial court's order sustaining his driver's license revocation, as certain software changes had been made to the instrument which had taken his breath analysis.  Because the record furnishes no evidence explaining what changes were made to the machine and how those changes may have affected its readings, we reverse and remand for further findings.

            After being taken to the police station on suspicion of drunk driving, appellant Jason Hinchliff submitted to a breath analysis taken by the Intoxilyzer 5000, which showed an alcohol concentration of .13, and his driver's license was revoked.  At the hearing at which appellant challenged his license revocation, the parties stipulated that certain software changes had been made to the Intoxilyzer 5000 since the last time the machine was certified for approval by the commissioner for use. 

            To be considered an infrared-breath-testing device under the implied consent statute, the Commissioner of Public Safety must approve such a device.  Minn. Stat. § 169.01, subd. 68 (1998).  The parties stipulated that the commissioner has approved the use of the specific model of the Intoxilyzer 5000 used here, but has not certified any software changes that have occurred since the last certification.

            The trial court found that the commissioner had satisfied its burden of proving that the Intoxilyzer test was reliable, despite the uncertified changes made to the machine's software.  The trial court made no separate findings on the changes to the software for the Intoxilyzer 5000, but based its reasoning on Acosta v. Commissioner of Public Safety, No. 477-149 (Minn. Dist. Ct. July 30, 1999).

The proponent of chemical tests in implied consent cases has a burden to establish that the test is reliable and that "its administration in the particular instance conformed to the procedure necessary to ensure reliability."  State v. Dille, 258 N.W.2d 565, 567 (Minn. 1977).  "Burden-of-proof determinations 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).  If the trial court fails to make adequate findings, a remand may be required.  Welch v. Commissioner of Pub. Safety, 545 N.W.2d 692, 694 (Minn. App. 1996).

            Appellant claims that this case must be remanded because the trial court made no findings and simply adopted findings from a different case.  Respondent argues that the trial court made its own findings and adopted the reasoning from Acosta.  While the trial court here made factual findings about the incident leading up to the testing, it made no findings concerning the software changes to the Intoxilyzer 5000 machine used. 

Conversely, in Acosta, the court discussed, at some length and in some depth, the changes made to the machine, how those changes would affect readings, and specifically how the changes affected the petitioner in that case.  The Acosta court then presented the issue in terms of whether the Commissioner of Public Safety, in approving a specified model of the Intoxilyzer 5000, also intended to approve the use of various software packages, assuming that the underlying analytical components of the machine did not change.  The Acosta court determined that the commissioner intended to require approval for all changes, including minor software changes, and then proceeded to review the procedures and purposes of breath or Intoxilyzer tests and determined that the particular software changes at issue did not violate the approved procedures.

Here, although the parties stipulated that changes were made to the Intoxilyzer 5000's software, there is no evidence in the record concerning those changes or how they affected the machine and its readings.  There is nothing in the record suggesting that the changes which respondent stipulated were made to the machine's software were similar to those made to the machine in Acosta.  There is no evidence to suggest whether the software changes were major or minor.  Therefore, we must remand for clarifying findings on the changes made to the Intoxilyzer 5000's software and how those changes may have affected the machine's readings.

Reversed and remanded.

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