Hennepin County District Court File No. 03037936.
Considered and decided by Willis, Presiding Judge; Minge, Judge; and Forsberg, Judge.*fn1
A police officer has discretion to terminate a breath test before it is completed and to provide an alternative test if the subject burps multiple times during the test, even though the equipment does not indicate the presence of mouth alcohol.
The opinion of the court was delivered by: Minge, Judge
Appellant argues that the district court erred in denying his motion to suppress the results of his blood test. He argues that once a police officer begins to administer a breath test, the officer does not have the discretion to terminate the test if the individual burps during the exam unless the machine reveals the presence of mouth alcohol. We affirm.
After initiating a traffic stop, Officer John Keding arrested appellant Vince Coleman based on his belief that appellant was driving under the influence of alcohol. Officer Keding transported appellant to the police station, where he read appellant the Minnesota Implied Consent Advisory. Appellant stated that he understood his rights and agreed to submit to a breath test.
After the initial 15-minute observation period recommended by the Bureau of Criminal Apprehension (BCA), Officer Keding administered the breath test using the Intoxilyzer 5000. Appellant's first breath sample showed a score of .151. Before giving the required second sample, appellant burped. Officer Keding stopped the test due to concerns that appellant's burp created mouth alcohol, which could affect the reliability of the test. He then began a second 15-minute observation period, intending to run the test from the beginning. During this second observation period, appellant burped again. Officer Keding terminated the observation period, reread appellant the Minnesota Implied Consent Advisory, and asked appellant to submit to a blood or urine test. Appellant agreed to a blood test, which indicated an alcohol level of .14.
Based on the results of the blood test, appellant was charged with fourth-degree driving while impaired. The district court denied appellant's motion to suppress the blood test, found him guilty as charged and sentenced him. Appellant challenges the district court's denial of his motion to suppress the results of his blood test, arguing that the officer improperly discontinued the breath test.
If a person burps during the administration of a breath test to determine blood-alcohol concentration, does the administering police officer have discretion to ...