Weierke v. Commissioner of Public Safety

• Decision Date: 02 June 1998
• Docket Number: No. C9-97-1740,C9-97-1740
• Citation: 578 N.W.2d 815
• Parties: John Paul WEIERKE, petitioner, Appellant, v. COMMISSIONER OF PUBLIC SAFETY, Respondent.
• Court: Minnesota Court of Appeals

Page 815

578 N.W.2d 815

John Paul WEIERKE, petitioner, Appellant, v. COMMISSIONER OF PUBLIC SAFETY, Respondent.

No. C9-97-1740.

Court of Appeals of Minnesota.

June 2, 1998.

Syllabus by the Court

In implied consent proceedings, the statute permits breath test evidence of alcohol concentration based on a breath sample in a quantity that exceeds the minimum adequate sample indicated by the testing instrument.

Richard L. Swanson, Chaska, for appellant.

Hubert H. Humphrey III, Attorney General, Joel A. Watne, Assistant Attorney General, for respondent.

Considered and decided by PETERSON, P.J., and LANSING and CRIPPEN, JJ.

OPINION

CRIPPEN, Judge.

John Paul Weierke, appealing from a trial court order sustaining the revocation of his driver's license, challenges the lawfulness of the Intoxilyzer test of a sample that exceeded the minimum adequate sample. We affirm.

FACTS

After his arrest for DWI in June 1997, appellant submitted to an Intoxilyzer test and gave two adequate breath samples producing readings of .132, .136, .134, and .135 and a reported value of .13 with a 99% breath correlation. Based on this test result, the commissioner of public safety revoked appellant's driver's license.

At the revocation hearing, appellant argued that an excessive quantity of breath was tested. More specifically, he argued that the testing occurred when the sample had grown larger than the amount indicated as adequate on the machine. Thus, he disputed that there was proper proof of a .10 or greater alcohol concentration because the chemical test was not lawful under Minn.Stat. § 169.123, subd. 2b (1996), which calls for analysis of an "adequate breath sample." The trial court sustained the revocation.

ISSUE

Does the implied consent statute require that a sample not exceed the quantity that is adequate?

ANALYSIS

Appellant contends that the evidence used against him was unlawful. This court will uphold the trial court's decision unless it erroneously applied the law to the facts. Dehn v. Commissioner of Pub. Safety, 394 N.W.2d 272, 273 (Minn.App.1986).

1. Lawful Breath Sample.

The governing statute dictates a minimum quantity for a sample but does not suggest that the sample may not be larger than the minimum. But Minn. R. 7502.0410 (1997) authorizes the Bureau of Criminal Apprehension to establish the procedures for analyzing breath samples and Minn. R. 7502.0430, subpt. 2 (1997), provides that any sample accepted as valid by the Intoxilyzer 5000 is considered adequate. ¹ See Minn.Stat. § 169.128 (1996) (authorizing the promulgation of rules to carry out section 169.123).

Appellant also failed to show either that this application of statutory law prejudiced his interests or that the legislature intended a different result. Minn.Stat. § 645.16 (1996). More specifically, appellant has not shown that a quantity of breath greater than the minimum adequate sample produces a higher alcohol concentration result ² or that it inaccurately reflects the actual alcohol concentration in the body.

2. Due Process.

Appellant also contends that requiring him to provide more than the minimum adequate breath sample is a violation of his right to due process and a fair trial. This claim is not properly before the court because it was not raised or argued at the revocation hearing. Thiele v. Stich, 425 N.W.2d 580, 582-83 (Minn.1988) (noting that this court will generally not consider matters that were not raised and decided in the trial court). We refrain from reviewing the question in this case.

3. Necessity.

Appellant contends that he adequately raised the necessity defense. The necessity defense applies in emergency situations were peril is imminent and the defendant has no other option but to violate the law. State v. Johnson, 289 Minn. 196, 197, 183 N.W.2d 541, 543 (1971). The record includes no evidence of an emergency requiring appellant to drink and drive, and appellant freely admits he had other options available. Furthermore, it has not been determined that the necessity defense is...