State of Minnesota, Respondent, vs. Gloria J. Perry, Appellant.

State of Minnesota, Respondent, vs. Gloria J. Perry, Appellant. A06-732, Court of Appeals Unpublished, April 17, 2007.

This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480 A. 08, subd. 3 (2006).

 

STATE OF MINNESOTA

IN COURT OF APPEALS

A06-732

 

State of Minnesota,

Respondent,

 

vs.

 

Gloria J. Perry,

Appellant.

 

Filed April 17, 2007

Affirmed

Randall, Judge

 

Ramsey County District Court

File No. K2-05-600313

 

Lori Swanson, Attorney General, 1800 Bremer Tower, 445 Minnesota Street, St. Paul, MN  55101; and

 

Thomas R Hughes, Hughes & Costello, 1230 Landmark Towers, 345 St. Peter Street, St. Paul, MN  55102 (for respondent)

 

Charles A. Ramsay, Kevin W. DeVore, Ramsay & DeVore, P.A., 450 Rosedale Towers, 1700 West Highway 36, Roseville, MN  55113 (for appellant)

 

            Considered and decided by Randall, Presiding Judge; Toussaint, Chief Judge; and Hudson, Judge.

U N P U B L I S H E D   O P I N I O N

RANDALL, Judge

            On appeal from conviction for driving while intoxicated, appellant argues that because her blood sample was drawn more than two hours after she drove, she could not be convicted of having a blood alcohol concentration of .10 or more "as measured within two hours of the time of driving" pursuant to Minn. Stat. § 169 A. 20, subd. 1(5) (2004).  Appellant argues that this court's opinion in State v. Banken, 690 N.W.2d 367 (Minn. App. 2004), review denied (Minn. Mar. 29, 2005), misconstrued the statute and should be overruled.  We affirm.

FACTS

            On January 10, 2005, at 10:51 p.m., Officer Dan Dixon responded to a report of a vehicle off the road in New Brighton.  Shortly thereafter, the officer arrived at the scene and observed the vehicle off the road.  Appellant Gloria Perry admitted to the officer that she was the driver of the vehicle and that she missed the turn and went through a guardrail and chain link fence and struck a semaphore.  Based on preliminary road-side sobriety testing, Officer Dixon arrested appellant for driving while intoxicated (DWI).  Appellant was subsequently transferred to the hospital where she consented to a blood test.  Blood was drawn at 12:55 a.m., and the results of the blood test revealed an alcohol concentration of .22.  There was a two-hour and five-minute interval between the last known point of driving and taking of the blood.  Although there is some fuzziness in the record as to exactly what the time interval was, the state, with appreciated candor, agrees that the sample was drawn at least some minutes after a two-hour interval.  Both sides cooperated to frame the narrow issue.

            Appellant was charged with driving with a blood alcohol concentration (BAC) of .10[1] or more as measured within two hours of driving in violation of Minn. Stat. § 169 A. 20, subd. 1(5) (2004).  Appellant subsequently executed a written waiver of trial by jury and the matter was submitted to the district court on a stipulated record regarding the admissibility of alcohol testing results when the blood test was taken more than two hours after the last known point of driving.  The district court denied appellant's motion to suppress the results of the blood test, and found appellant guilty of the charged offense.  This appeal followed.  

D E C I S I O N

            An appellate court reviews whether a district court has properly construed a statute as a question of law subject to de novo review.  State v. Murphy, 545 N.W.2d 909, 914 (Minn. 1996).  If the language in a statute is clear, courts will rely on the plain meaning.  Correll v. Distinctive Dental Servs., 607 N.W.2d 440, 445 (Minn. 2000).  If the language is ambiguous, courts apply the rules of statutory construction.  Id.  Language is ambiguous if it is reasonably subject to more than one interpretation.  State by Beaulieu v. RSJ, Inc., 552 N.W.2d 695, 701 (Minn. 1996).

 

            Minn. Stat. § 169 A. 20, subd. 1(5) (2004), provides:

            It is a crime for any person to drive, operate, or be in physical control of any motor vehicle within this state or on any boundary water of this state:

 

            . . . .

 

            (5) when the person's alcohol concentration at the time, or as measured within two hours of the time, of driving, operating, or being in physical control of the motor vehicle is 0.08 or more.

 

            An accused may be charged with two separate crimes under subdivision 1(5):  (1) for the crime of having an alcohol concentration of .08 or more "at the time of driving"; or (2) for the crime of having an alcohol concentration of .08 or more "as measured within two hours of the time of driving."  The issue in this case is the application of subdivision (5), the second clause, the "as measured" clause.

            Appellant argues that if the state chooses the "as measured within two hours" clause, the sample must be taken (collected, "breathed into," drawn) within two hours of the last known point of driving ("POD") conduct by the accused.  Appellant argues that if subdivision 1(5) is utilized, and the sample is taken within two hours, there is no prejudice to the driver.  But appellant goes on to argue that if subdivision 1(5) is utilized, then, if the sample is collected more than two hours after the last POD, the state's expert's retrograde extrapolation must go back to the POD.  It cannot just go back to "within two hours of driving."  The state argues just the opposite.  The state argues that even if the sample is collected after two hours, subdivision 1(5) can still be charged if their expert's retrograde analysis can show the accused's BAC to be at the offending limit (or more) within two hours of the POD.

            Both sides were cooperative with the court in keeping the issue clear and narrow.  Both sides agreed the following example can be used to clarify the respective positions.  Assume a POD of midnight and a sample collected at 3:00 a.m. (any time after 2:00 a.m. will do for illustration purposes).  Assume the charge utilized subdivision 1(5).  The state argues that the state's expert need only extrapolate back to 2:00 a.m. when testifying that the driver's BAC was at or above the legal limit.  The defense argues that, since the sample was taken more than two hours after the POD, the state's expert must extrapolate back to midnight (the POD), when testifying that the driver's BAC was at or above the legal limit.

            Both sides agree that the actual "measurement," the actual "quantification," the actual "calculations" (by whatever term used) must, by definition, be taken at some point after the actual collection.  With the intoxilizer breath test, computation follows quickly.  That was State v. Banken, 690 N.W.2d 367, 372-73 (Minn. App. 2004), review denied (Minn. Mar. 29, 2005).  When you have a blood sample drawn, as is our case, the quantification/calculation will take place minutes to perhaps a few hours later.  The
amount of time taken between the collection (breath sample taken/blood sample drawn) and later measurement is not material to either side's argument.

            The issue, put another way, is that under subdivision 1(5), the defense says if the sample is collected more than two hours after the POD, the state's retrograde analysis must go back to the POD.  The state argues that even when the collection is taken more than two hours after the POD, the retrograde analysis need only go back to within two hours of the POD.

            Appellant readily concedes that it is not her intent to knock out the statute and have it voided.  Appellant simply argues that all samples taken/collected after two hours (120 minutes no "slop" or grace period) must be supported by competent retrograde analysis back to the POD to be admissible. 

            Appellant's argument that the language "as measured within two hours of the time, of driving" requires that the sample be taken within two hours of driving was analyzed and rejected in Banken. 690 N.W.2d at 372-73.  In Banken, this court determined that even if section 169 A. 20, subd. 1(5), is ambiguous, the legislative history of the statute led this court to conclude that the legislative intent

appears to have been to make having an alcohol concentration that is accurately ascertainable as above the legal limit within two hours of driving have the same consequence as an alcohol concentration above the legal limit at the time of driving.  Therefore, the important question is whether the alcohol concentration can be accurately shown to be above the legal
limit at any time within two hours of driving, not whether the sample was actually taken during that window of time.

 

Id. at 372. 

            Appellant argues that Banken was incorrectly decided, the statute is ambiguous, and Banken incorrectly construed a penal statute strictly against the defendant and in favor of the state. 

            Both sides agree the origin of subd. 1(5) is the years-ago argument, which was supported by reasonable expert testimony, that the minute someone quits consuming alcohol, their BAC for a short time may actually rise, as the alcohol they have recently ingested starts to move throughout their system.  Since it is agreed that this potential upward curve starts to go down if two hours have elapsed since you last drank, it is reasonably safe to assume that your BAC two hours after driving is either less or no more than equal to your BAC at the time of driving.  The state argues there is no prejudice to the driver if the expert testimony extrapolates back to within two hours after driving because the driver's BAC is highly likely to have been, at the last point of driving, even higher. 

            Appellant argues that Banken was incorrectly decided because it misapplied the statutory rule of penal construction.  Both sides agree that the rule involving the construction of penal statutes is that "where doubt exists as to legislative intent of a penal statute, doubts must be resolved in favor of the defendant."  State v. Serstock, 402 N.W.2d 514, 516 (Minn. 1987); see State v. Haas, 280 Minn. 197, 200, 159 N.W.2d 118, 121 (1968).  We understand appellant's argument.  The case is close and there are viable legal arguments on both sides.  But legitimate arguments on the meaning of a statute, for or against, do not automatically mean the statute is ambiguous.  In other words, it can be close without being ambiguous.  In examining the totality of the record and the legislative history, we agree with the state that "as measured by" means if you can measure the driver's BAC to within two hours after the point of driving, you can prosecute under subdivision 1(5).  That is the holding of Banken.

            Other states facing the same issue have omitted the "as measured" language and have simplified what appellant calls the uncertainty of "as measured by."  For example, Washington law provides:

            Analyses of blood or breath samples obtained more than two hours after the alleged driving may be used as evidence that within two hours of the alleged driving, a person had an alcohol concentration of 0.08 or more in violation of subsection (1)(a) of this section, and in any case in which the analysis shows an alcohol concentration above 0.00 may be used as evidence that a person was under the influence of or affected by intoxicating liquor or any drug in violation of subsection (1)(b) or (c) of this section.

 

Wash. Rev. Code § 46.61.502(4) (2006).  The Washington statute is clear.  It gives the state the two-hour time frame they want and makes the two-hour extrapolation burden less onerous. 

            It is not the job of the judiciary to make criminal prosecution less onerous, but a state legislature can, if, like Washington, they pass, "two-hour" legislation.  A number of states make it clear that extrapolation back within two hours of the last point of driving is a way to prosecute.  See id.; see also Ariz. Rev. Stat. § 28-1381(A)(2) (2006) ("If the person has an alcohol concentration of 0.08 or more within two hours of driving or being in actual physical control of the vehicle and the alcohol concentration results from alcohol consumed either before or while driving or being in actual physical control of the vehicle."); N.C. Gen. Stat. § 20-138.1(a)(2) (2006) (stating that a person commits the offense of driving while impaired if he drives a vehicle "[a]fter having consumed sufficient alcohol that he has, at any relevant time after the driving, an alcohol concentration of 0.08 or more"). 

            We acknowledge that Minnesota adopting language similar to the language in these statutes would be helpful.  However, we decline to conclude that Banken was incorrectly decided.

            Affirmed.    

[1]  .10 blood alcohol level was the law at the time.  It is not at issue that the subdivision today provides for a .08 BAC.