Hager v. Commissioner of Public Safety
| Decision Date | 04 March 1986 |
| Docket Number | No. C5-85-1678,C5-85-1678 |
| Citation | 382 N.W.2d 907 |
| Parties | Jason D. HAGER, Petitioner, Appellant, v. COMMISSIONER OF PUBLIC SAFETY, Respondent. |
| Court | Minnesota Court of Appeals |
Syllabus by the Court
1. The trial court did not err in concluding that the Commissioner showed by a preponderance of the evidence that the test results indicated an alcohol concentration of .10 or more, that the testing method used was valid and reliable, and that the test results were accurately evaluated.
2. The trial court properly considered the results of the preliminary screening test to determine probable cause, where appellant introduced no evidence showing that chewing gum could affect the result of the test.
3. The police officer did not have a duty to offer appellant a telephone to use to contract an attorney after testing or to arrange for additional testing for appellant.
S. Warren Gale, Bloomington, for appellant.
Hubert H. Humphrey, III, Atty. Gen., Ann Elizabeth Cohen, Lawrence M. Schultz, Sp. Asst. Attys. Gen., St. Paul, for respondent.
Heard, considered and decided by HUSPENI, P.J., and FOLEY and NIERENGARTEN, JJ.
Appellant Jason D. Hager's driving privileges were revoked pursuant to the implied consent law. He petitioned for judicial review and the trial court sustained the revocation. We affirm.
On March 24, 1985, at approximately 2:22 a.m., Officer James Thorstad was eastbound on Brooklyn Boulevard near Regency Avenue in Brooklyn Park, when he observed Hager's vehicle which had one headlight out and no visible rear license plate. Thorstad stopped Hager's vehicle, and asked for his driver's license. While talking to him, Thorstad observed that Hager's eyes were bloodshot and watery and his breath had the odor of an alcoholic beverage.
Thorstad requested, and Hager agreed to, a preliminary breath test which registered a failing result. Thorstad arrested Hager for driving while intoxicated and transported him to the Brooklyn Park police station. At approximately 2:40 a.m., Thorstad, who was a certified Intoxilyzer operator, attempted to administer the breath test to Hager by pushing the start button on the Intoxilyzer and inserting a test record.
The Intoxilyzer first performed internal diagnostic checks; the temperature was 45?C plus or minus 5?C and the air blank had a reading of .000. Both readings were within established tolerances. Before Hager gave the sample, Thorstad inspected his mouth and observed some gum. Thorstad discontinued the test and had Hager spit out the gum.
After waiting about five minutes, at approximately 2:51 a.m., Thorstad administered another breath test to Hager. The Intoxilyzer first performed internal diagnostic checks, with the temperature reading 45?C plus or minus 5?C and with an air blank reading of .000, both of which were within established tolerances.
Hager gave his first breath sample. It was adequate, and registered an alcohol concentration of .129 with a replicate reading of .130. The Intoxilyzer then performed an air blank check, with a reading of .000. Thorstad performed a calibration standard analysis, with a reading of .106 and a replicate reading of .109. All of these readings were within established tolerances.
Hager then gave a second breath sample, which was adequate and registered an alcohol concentration reading of .111, with a replicate reading of .116. The Intoxilyzer calculated a breath correlation of .88, and gave a reported value of .11 for Hager's test.
When the testing was completed, Thorstad did not ask Hager whether he wished to consult with an attorney. Thorstad transported Hager to a friend's apartment.
Hager testified at the implied consent hearing that he started chewing the gum shortly before being stopped by Thorstad. From his other testimony, the court found that it appeared Hager did not consume alcoholic beverages after he started chewing gum.
1. Did the trial court err in concluding that the test was reliable?
2. Did the trial court err when it determined that the police officer had sufficient probable cause to invoke the implied consent law and to justify the arrest?
3. Was appellant denied his statutory right to consult with an attorney or his statutory right to have an independent test done?
Hager contends that the trial court erred when it admitted the Intoxilyzer test results into evidence, because Thorstad observed Hager for only five minutes after the gum was removed from his mouth prior to beginning the test, and because the breath correlation of the two breath samples was only 88%.
As a preliminary matter, we note that Hager included an Intoxilyzer manual in his appellate brief appendix which was not introduced in the trial court. We cannot consider material that was not a part of the trial court record. Hasan v. McDonald's Corp., 377 N.W.2d 472, 473 (Minn.Ct.App.1985).
The standard which must be met in order to lay a sufficient foundation to introduce a test into evidence is well settled. "The proponent of a chemical or scientific test must establish that the test itself 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). The reason behind this rule is that without such a foundation, the test is not probative and is therefore irrelevant. Id. The proponent does not have an absolute burden to show trustworthiness. Tate v. Commissioner of Public Safety, 356 N.W.2d 766, 768 (Minn.Ct.App.1984). After a prima facie showing of trustworthy administration, the opponent must suggest reasons why the test was untrustworthy. Id. (quoting Dille, 258 N.W.2d at 568).
In this case, Thorstad initialed the space on the test form indicating "subject has been under observation for 15-20 minutes," and stated that during the observation period, Hager put nothing in his mouth. When Thorstad was about to have Hager give the first breath sample, he checked Hager's mouth and discovered gum. Thorstad had Hager remove the gum and waited "a proper time," five or six minutes, before commencing the test. Thorstad explained that the main concern with gum arises when the breathalyzer is used, but the chewing of gum is never a problem with the Intoxilyzer. He stated that with the Intoxilyzer, if there is an interference present other than alcohol or acetone, the machine will shut itself down. He testified that they were more concerned about anything containing alcohol, which could cause a difference in the test. To the best of the officer's knowledge, the gum that Hager was chewing was "plain ordinary chewing gum."
This court has addressed departures from breath-testing procedures before. In Kooi v. Commissioner of Public Safety, 363 N.W.2d 487 (Minn.Ct.App.1985), we considered a situation where all twenty-five steps of the Bureau of Criminal Apprehension checklist for the breathalyzer were not followed. We noted that where the circumstances show sufficient indicia of reliability, it is not necessary that all twenty-five steps be followed. Id. at 489. In Haegele v. Commissioner of Public Safety, 353 N.W.2d 704 (Minn.Ct.App.1984), this court found that where the operator failed to follow all requirements of a breathalyzer checklist and used an ampoule that did not meet the minimum standards established by the BCA, the trial court erred in sustaining the revocation of appellant's driver's license, because the testing method made the results unreliable.
The trial court here found that Hager presented no evidence showing that chewing gum after consuming alcoholic beverages would in any way artificially raise the results of the Intoxilyzer test, or that the officer should have waited more than five minutes before administering the second test. We believe the Commissioner met his burden of showing trustworthiness and that Hager failed to present evidence challenging the reliability and accuracy of the test. See Noren v. Commissioner of Public Safety, 363 N.W.2d 315 (Minn.Ct.App.1985).
The test also showed a "breath correlation" of 88%. No testimony was presented at the hearing as to the meaning of this figure. In Abe v. Commissioner of Public Safety, 374 N.W.2d 788, 791 (Minn.Ct.App.1985), this court noted that the BCA has recommended that when the correlation between the two tests is below 90%, the officer should run another test. In Abe, the appellant argued that the evidence was insufficient to show that the Intoxilyzer tests were valid because the correlation was below 90%. In Abe, this court held that the evidence supported the trial court's finding that the breath test showed a concentration of .10 or more, despite a breath correlation of 87%, when the machine was run by a certified operator, the machine was in proper working order, the chemicals were in proper condition, the room air results were within acceptable limits, and the test results were above .10. See also Zern v. Commissioner of Public Safety, 371 N.W.2d 82 (Minn.Ct.App.1985), (breath correlation of 89%; trial court erred in finding that the Commissioner failed to prove alcohol concentration of .10 or more).
In view of this court's holdings in Abe and Zern, we find no error in the trial court's admission of the test into evidence despite the 88% breath correlation figure.
Hager further argues that the failure to wait fifteen...
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