Luoma v. City of Minneapolis
| Decision Date | 06 January 1987 |
| Docket Number | No. C9-86-673,C9-86-673 |
| Citation | 398 N.W.2d 650 |
| Parties | James LUOMA, Petitioner, Appellant, v. CITY OF MINNEAPOLIS, Respondent. |
| Court | Minnesota Court of Appeals |
Syllabus by the Court
The trial court did not infringe on defense counsel's ability to impeach Intoxilyzer test results and the trial court did not make unfairly prejudicial comments or rulings during the trial.
Donald H. Nichols, Minneapolis, for appellant.
Robert Alfton, Minneapolis City Atty., Minneapolis, for respondent.
Heard, considered and decided by HUSPENI, P.J., and SEDGWICK and LANSING, JJ.
Appellant James Luoma was convicted of D.W.I., Minn.Stat. Sec. 169.121, subd. 1(a) (1984), and claims the trial court did not allow defense counsel to impeach the Intoxilyzer test results, the prosecutor committed misconduct in closing argument and that the trial court made prejudicial remarks and rulings during trial. We affirm.
Appellant was stopped for speeding in Minneapolis and was subsequently arrested for driving under the influence. Appellant consented to an Intoxilyzer test which resulted in a reading of .12 alcohol concentration. Appellant was charged with speeding, expired driver's license, driving under the influence, driving with an alcohol concentration of .10 or more and driving with an alcohol concentration of .10 or more within two hours of driving. The jury returned a verdict of guilty on all charges.
The City of Minneapolis lost the file and did not file a brief in this matter. We proceeded under Minn.R.Civ.App.P. 142.03.
1. Did the trial court infringe on appellant's right to impeach the Intoxilyzer results?
2. Did the prosecutor commit misconduct in closing argument?
3. Did the trial court's conduct during trial unfairly prejudice the defendant?
The proponent of a chemical test must establish that the test itself is reliable and that its administration in the particular instance conformed to procedure necessary to ensure reliability. State v. Dille, 258 N.W.2d 565, 568 (Minn.1977). Once a prima facie showing of trustworthy administration has been made, it is incumbent on the defendant to suggest a reason why the test was untrustworthy. Id.; Tate v. Commissioner of Public Safety, 356 N.W.2d 766, 768 (Minn.Ct.App.1984).
Appellant makes several contentions regarding his general claim that the trial court improperly infringed upon his ability to challenge the Intoxilyzer results.
1. Appellant claims the trial court improperly placed the burden of proving the test invalid on appellant. The record does not bear this out. The trial court referenced Minn.Stat. Sec. 634.16 (1984), which states:
In any civil or criminal hearing or trial, the results of an infrared breath-test, when performed by a person who has been fully trained in the use of an infrared breath-testing instrument, as defined in section 169.01, subdivision 68, pursuant to training given or approved by the commissioner of public safety or his acting agent, are admissible in evidence without antecedent expert testimony that an infrared breath-testing instrument provides a trustworthy and reliable measure of the alcohol in the breath.
Here there was sufficient evidence that the Intoxilyzer used in this case was functioning properly and the test was reliable. Appellant must then suggest a reason why the test was untrustworthy, which he failed to do. There was no error.
2. Appellant claims the trial court did not allow defense counsel to cross-examine witnesses about the 15-20 minute continuous observation period of test subjects, as recommended by the BCA. The record discloses that defense counsel did question the witnesses on this subject. There was no evidence that any lack of observation in this case may have affected this test. Melin v. Commissioner of Public Safety, 384 N.W.2d 474, 476 (Minn.Ct.App.1986). The trial court did not err in ruling that the test results were not invalidated on this ground.
3. Appellant claims he was not permitted to question expert witnesses regarding the reliability and accuracy of the Intoxilyzer 5000 machine. However, the record shows that the trial court never limited defense counsel from presenting evidence concerning the accuracy of the machine in question.
Appellant sought to ask his expert witness, Dr. Richard Jensen, about the problems with the Intoxilyzer 5000's measurement of room air. The trial court sustained an objection to defense counsel's question on how the problem could be solved and whether the Intoxilyzer 5000 could be improved. This ruling involved relevancy and was not an abuse of discretion. Similarly, an objection to a question regarding the compounds the Intoxilyzer 5000 measures was sustained and again we find no abuse of discretion.
The defense questions relating to the reliability and accuracy of the Intoxilyzer machine in general were largely irrelevant because under Minn.Stat. Sec. 634.16 the legislature has determined that the Intoxilyzer is a reliable and accurate measuring device of alcohol in the breath when properly administered. The trial court did not abuse its discretion under Minn.R.Evid. 403 and its rulings certainly did not rise to the level of prejudicial error. See Delaware v. Van Arsdall, --- U.S. ----, 106 S.Ct. 1431, 89 L.Ed.2d 674 (1986).
4. Appellant's breath sample resulted in an initial reading of .122, with a replicate reading of .122. The second subject test gave a reading of .137 with a replicate of .133. The correlation was 91 percent. The State's expert testified in rebuttal that 91 percent was a "pretty acceptable number".
On cross-examination defense counsel asked, "Isn't it true, sir, that if the correlation were less than 90%, it's your testimony that the test should be...
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State v. Gaard, C8-03-10.
...held to be a "reliable and accurate measuring device of alcohol in the breath when properly administered." Luoma v. City of Minneapolis, 398 N.W.2d 650, 652 (Minn. App. 1987), review denied (Minn. Feb. 18, Once the state makes a prima facie showing of "trustworthy administration, it is incu......