State Of Minn. v. Sterling
| Decision Date | 18 May 2010 |
| Docket Number | No. A09-418.,A09-418. |
| Citation | 782 N.W.2d 579 |
| Parties | STATE of Minnesota, Respondent,v.Robert William STERLING, Appellant. |
| Court | Minnesota Court of Appeals |
Syllabus by the Court
1. When an Intoxilyzer measures a suspect's alcohol concentration but does not provide a printout of the alcohol concentration, the attending officer may request the suspect to provide a blood or a urine sample for another type of test.
2. When the result of an Intoxilyzer test does not become available until after an alternative blood test or urine test has provided an alcohol concentration, the results of the blood test or the urine test are admissible as evidence.
Lori Swanson, Attorney General, St. Paul, MN, and LaMar Piper, Watonwan County Attorney, Kevin C. Lin, Assistant County Attorney, St. James, MN, for respondent.
Allen P. Eskens, Eskens Gibson and Behm Law Firm, Mankato, MN, for appellant.
Considered and decided by ROSS, Presiding Judge; STONEBURNER, Judge; and HARTEN, Judge.
*
After being charged with two counts of fourth-degree driving while impaired (DWI), appellant moved to dismiss the charges on the ground that the deputy sheriff unlawfully requested him to give a urine sample after he had provided breath samples for an Intoxilyzer test. His motion was denied. Under the procedure set out in Minn. R.Crim. P. 26.01, subd. 4, appellant acknowledged that the denial of his motion was dispositive, maintained his not guilty plea, and waived his right to a jury trial. The district court found him guilty on stipulated facts. He challenges his conviction.1
On 22 May 2008, appellant Robert Sterling was stopped by a Watonwan county deputy sheriff who observed appellant's vehicle swerve over the center line. Appellant failed the field sobriety tests that the deputy administered and admitted drinking two beers about a half an hour earlier. The deputy arrested appellant for DWI, took him to the county jail, and read him the implied consent advisory.
The deputy, a certified operator of the Intoxilyzer 5000, followed correct procedure in using the machine, and appellant submitted two adequate breath samples, which the machine accepted and measured. But the Intoxilyzer failed to complete the procedure: it stopped on “Air Blank” and did not provide a printout of appellant's alcohol concentration level to the deputy.
The deputy then read the implied consent advisory to appellant again and asked appellant to provide a urine sample, which appellant did. It showed a .15 alcohol concentration. The next day, the Bureau of Criminal Apprehension (BCA) provided a printout of the Intoxilyzer test; it also showed a .15 alcohol concentration. The BCA confirmed that the machine had accurately evaluated appellant's breath sample.
Based on the results of the urine test, respondent State of Minnesota charged appellant with two counts of fourth-degree DWI.
1. Did the officer lawfully request a urine sample from appellant?
2. Did the district court err in using the results of the urine test to convict appellant?
In an appeal following a Minn. R.Crim. P. 26.01, subd. 4, procedure (superseding the procedure set out in State v. Lothenbach, 296 N.W.2d 854, 857-58 (Minn.1980)), this court's review is limited to the pretrial order that denied the motion to suppress. State v. Ortega, 770 N.W.2d 145, 147 n. 1, 149 (Minn.2009). This court reviews undisputed facts and “determine [s], as a matter of law, whether the evidence need be suppressed.” Id. at 149 (quotation omitted).
“[A] driver who submits to a breath test is obligated to submit to a blood or urine test if the breath testing machine does not work ... if he does not want to lose his license.” Gunderson v. Comm'r of Pub. Safety, 351 N.W.2d 6, 7 (Minn.1984). Appellant argues that the district court erred in relying on Gunderson because, in that case, “the testing machine malfunctioned by not giving a reading on the breath sample ... [and the] machine was taken in for repairs” while the machine in the instant case “was working properly at the time it was used and it provided a print out of the breath results.” Appellant cites the parties' Minn. R.Crim. P. 26.01, subd. 4, stipulation at 6(k) for support of this statement. But appellant misreads 6(k) and takes it out of context. The relevant portion of the stipulation reads:
After taking appellant to the county jail, the deputy's immediate responsibility was to ascertain appellant's alcohol concentration. The deputy's attempt to do so with the Intoxilyzer failed because the machine did not provide that information, and the deputy had no way of knowing when, if ever, the Intoxilyzer would provide him with an evaluation of appellant's breath samples. As it happened, the Intoxilyzer did provide the evaluation on the following day, but that fact is irrelevant; under the circumstances, the deputy could not wait until the next day to determine what appellant's alcohol concentration had been while he was driving.
Appellant relies on Young v. Comm'r of Pub. Safety, 420 N.W.2d 585, 587 (Minn.1988) (). But appellant's reliance is misplaced: the holding in Young is explicitly limited to its facts, and those facts are clearly distinguishable. See also Nelson v. Commissioner of Public Safety, 779 N.W.2d 571, 574-77 (Minn.App.2010) ().
In Young, the driver provided two breath samples, each of which was tested twice. Id. at 586. The first sample provided readings of .094 and .097; the second provided readings of .109 and .110 Id. The final reported score (obtained by dropping the third digit from the lowest of the four readings) was .09 Id.; id at n.1. The correlation between the samples was 88%, and the BCA had instructed the deputy to request a second test if the correlation was less than 90%. Id. He did so. Id. In the second test, the reported value was .10 and the correlation of the samples was 99%. Id. In the instant case, the deputy sheriff never obtained any Intoxilyzer score on appellant's samples. Appellant's Intoxilyzer test, unlike the first test in Young, was not “reliable and adequate.”
Appellant also argues that the deputy had no authority to make “the unilateral determination that [a]ppellant's breath samples were inadequate,” relying on language in Young: “[I]t is the machine that determines whether a breath sample is adequate or deficient and not the officer.” Id. at 586. But neither the deputy nor anyone else claimed that appellant's breath samples were inadequate; the deputy determined that the machine malfunctioned by failing to disclose appellant's alcohol concentration, because appellant's breath samples were inadequate.
A driver submits to a chemical test of blood, breath, or urine “for the purpose of determining the presence of alcohol.” Minn.Stat. § 169A.51, subd. 1(a) (2008). The deputy lawfully requested appellant to provide a urine sample when the Intoxilyzer test did not achieve that purpose.
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