Bart Andrew Bahe, petitioner, Appellant, vs. Commissioner of Public Safety, Respondent.

This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480 A. 08, subd. 3 (2002).

 

 

STATE OF MINNESOTA

IN COURT OF APPEALS

C7-03-385

 

Bart Andrew Bahe, petitioner,

Appellant,

 

vs.

 

Commissioner of Public Safety,

Respondent.

 

Filed November 10, 2003 Affirmed

Poritsky, Judge *

 

 

Hennepin County District Court

File No. 481590

 

 

Steven J. Meshbesher, Meshbesher & Associates, P.A., 225 Lumber Exchange Building, 10 South Fifth Street, Minneapolis, MN 55402 (for appellant)

 

 

Mike Hatch, Attorney General, Joel A. Watne, Assistant Attorney General, 1800 NCL Tower, 445 Minnesota Street, St. Paul, MN 55101-2134 (for respondent)

 

 

            Considered and decided by Schumacher, Presiding Judge; Lansing, Judge; and Poritsky, Judge.

U N P U B L I S H E D   O P I N I O N

PORITSKY, Judge

            Appellant Bart Andrew Bahe appeals the district court's order sustaining the implied consent revocation of Bahe's driver's license. 

FACTS

            On August 30, 2002, Bahe was arrested for driving while impaired (DWI) and brought to the Bloomington Police Department for Intoxilyzer testing.  From the time he was stopped at approximately 1:30 a.m. until the time he took the Intoxilyzer test at approximately 3:17 a.m., Bahe did not eat, drink, vomit, or regurgitate.  Moreover, in the 15-minute period prior to taking the test, during which time he was under observation by police officers, Bahe did not burp.

Bloomington Police Officer Rick Markiewicz, a certified Intoxilyzer operator, initiated testing at 3:17 a.m.  Bahe gave the first breath sample at 3:21 a.m.; the Intoxilyzer accepted this sample as adequate.  Bahe gave the second breath sample at 3:25 a.m.  (A single test requires two samples.)  The Intoxilyzer indicated that the second sample was invalid; when this happens the machine displays "xxx."  Markiewicz testified that the seal between Bahe's mouth and the mouthpiece of the Intoxilyzer was broken while Bahe was providing the second sample, and as a result, some of Bahe's breath sample did not enter the Intoxilyzer.  At trial, the expert witnesses disagreed whether alcohol in the subject's mouth could be the only cause of an invalid sample or whether an invalid sample could have some other cause.

            If the Intoxilyzer indicates an invalid sample, the manufacturer's operating manual recommends waiting 15 minutes before attempting another test in order to allow mouth alcohol to be eliminated.  At 3:39 a.m., 14 minutes after the invalid sample, Bahe gave the first breath sample of the second test. After he gave a second sample, the Intoxilyzer indicated that both breath samples of the second test were valid and that Bahe's alcohol concentration exceeded the legal limit.  The commissioner subsequently revoked appellant's driving privileges. 

Bahe filed a petition for judicial review of the implied consent revocation.  At trial, Bahe argued that the second Intoxilyzer test was not reliable because Markiewicz did not wait the recommended 15 minutes after the invalid first test before administering the second test.  The district court sustained the revocation of Bahe's driving privileges.  The court stated "technical variances, or even significant variances between the procedure described in the [Intoxilyzer] manual and what actually happened are not necessarily fatal."  The court further said that unless there is a specific showing that a defect exists and that the defect affected the outcome of the second test, then it does not matter how long Markiewicz waited between tests.  The court held that the "xxx" display on the Intoxilyzer 5000 was not convincing evidence of mouth alcohol. 

D E C I S I O N

            "Findings of fact, whether based on oral or documentary evidence, shall not be set aside unless clearly erroneous, and due regard shall be given to the opportunity of the trial court to judge the credibility of the witnesses."  Minn. R. Civ. P. 52.01.  "Findings of fact are clearly erroneous only if the reviewing court is left with the definite and firm conviction that a mistake has been made."  Fletcher v. St. Paul Pioneer Press, 589 N.W.2d 96, 101 (Minn. 1999) (quotation omitted).  The appellate court views the evidence in the light most favorable to the factual findings and assumes the fact-finder believed the state's witnesses and disbelieved contrary evidence.  State v. Atkins, 543 N.W.2d 642, 646 (Minn. 1996).

I.

            Bahe argues that the district court erred when it found that respondent commissioner made a prima facie showing of a valid, reliable, and accurate test.  The proponent of a chemical test must lay sufficient foundation to establish that the test is reliable and that the administration of the test conformed to the procedures necessary to ensure reliability.  State v. Dille, 258 N.W.2d 565, 567 (Minn. 1977).  A prima facie case is established by showing that a certified Intoxilyzer operator conducted the testing and that the instrument was operating properly.  State Dep't of Pub. Safety v. Habisch, 313 N.W.2d 13, 15 (Minn. 1981); Zern v. Comm'r of Pub. Safety, 371 N.W.2d 82, 83 (Minn. App. 1985).

            Here, the commissioner met his burden of proving that the Intoxilyzer test result was prima facie valid, accurate, and reliable.  First, we note that Bahe concedes that the Intoxilyzer 5000 was in working order and that Officer Markiewicz was a certified operator of the Intoxilyzer 5000.  Markiewicz observed Bahe for the required time prior to the test, and during that time, Bahe did not put anything in his mouth, burp, regurgitate, or do anything else that would have caused the presence of mouth alcohol.  Markiewicz testified that prior to the second test, the Intoxilyzer had the proper number of air blanks in the test sequence and that the readings on the air blanks indicated that the machine was working properly.   Markiewicz further testified that he noticed nothing else that would have suggested that the Intoxilyzer did not work properly during the second test.  See Roettger v. Comm'r of Pub. Safety, 633 N.W.2d 70, 74 (Minn. App. 2001) (finding an Intoxilyzer test prima facie valid where a certified operator administered the test, the air-blank and calibration-standard tests indicated the machine was operating properly, and the operator had no reason to believe that the tests results were invalid).  Because the commissioner made a prima facie showing that the second test administered to Bahe was valid, reliable, and accurate, the district court did not err in admitting the results of that test.

II.

Once the commissioner showed that the Intoxilyzer results were prima facie valid, it became incumbent on Bahe to demonstrate why they were untrustworthy.  Dille, 258 N.W.2d 565, 568 (Minn. 1977); Roettger, 633 N.W.2d at 74.   In order to show that the test results were untrustworthy, Bahe needed to provide more than speculation.  Roettger, 633 N.W.2d at 74. At all times, however, the ultimate burden of persuasion remained on the commissioner.  Id.

            Bahe contends that the district court improperly found that he did not produce any evidence demonstrating that the test was unreliable.  He argues that since the officer administering the test did not wait for 15 minutes between tests, the second test is untrustworthy.  But this court has held that minor improprieties in test administration will not invalidate Intoxilyzer results.  In Falaas v. Comm'r of Pub. Safety, this court reversed an order of the district court rescinding the revocation of a driver's license where the district court rescinded the revocation on the grounds that the observation period was deemed imperfect and that the driver could have burped or put something in his mouth during that time.  388 N.W.2d 40, 42 (Minn. App. 1986).  Further, this court has upheld the revocation of a driver's license when the observation period was disrupted while the driver made a trip to the bathroom, where the officer had no reason to believe the driver placed anything in her mouth during that time.  Tate v. Comm'r of Pub. Safety, 356 N.W.2d 766, 768 (Minn. App. 1984).  This court also reversed a district court's rescission of a license revocation where the driver testified that she "could have" burped, finding that this was an insufficient basis upon which to rescind the license revocation.  Engen v. Comm'r of Pub. Safety, 383 N.W.2d 399, 401-02 (Minn. App. 1986).

Here, Bahe failed to produce any evidence demonstrating that the second Intoxilyzer test was unreliable.   Markiewicz's testimony showed that he observed Bahe for more than 15 minutes prior to the second Intoxilyzer test and that Bahe had not done anything in that time period that would have affected the accuracy of the test.  Further, the printed Intoxilyzer test reports showed that the first breath sample of the second Intoxilyzer was given 14 minutes after the invalid sample on the first Intoxilyzer.  Thus, there was only a minor impropriety in the administration of the second Intoxilyzer test. 

Moreover, Bahe's argument that the presence of mouth alcohol was the only factor that could cause an "xxx" reading was the subject of conflicting expert testimony.  Bahe's expert testified that the Intoxilyzer would display "xxx" only if there was mouth alcohol.  But the commissioner's expert testified that the Intoxilyzer could also display "xxx" if some of the breath sample did not enter the instrument.  Officer Markiewicz testified that the seal between appellant's mouth and the mouthpiece was broken, and that was the cause of the invalid sample. 

The district court accepted the testimony of the commissioner's expert.  The court found that there was a "convincing" indication that the "xxx" reading on the Intoxilyzer 5000 was not caused by mouth alcohol and that the second test was not shown to be unreliable.  In fact, the court found the evidence was clear and convincing that the second test was reliable.  Because the evidence produced at trial is sufficient to support this finding, we cannot say that the district court's decision is clearly erroneous.  Therefore, the district court did not err in sustaining the revocation.

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.