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State v. Birk

October 5, 2004

STATE OF MINNESOTA, RESPONDENT,
v.
WENDY ANN BIRK, APPELLANT.



Anoka County District Court. File No. K3-03-4705.

Considered and decided by Peterson, Presiding Judge; Stoneburner, Judge; and Wright, Judge.

SYLLABUS BY THE COURT

In a driving-while-impaired case, the state's burden of proving beyond a reasonable doubt that a driver's alcohol concentration was.10 or more does not require the state to present expert testimony on the reliability of the Intoxilyzer test method.

The opinion of the court was delivered by: Wright, Judge

Affirmed

OPINION

Appellant challenges her conviction of third-degree driving while impaired (DWI) (having an alcohol concentration of.10 or more within two hours of driving), arguing that (1) the evidence was insufficient to prove that the Intoxilyzer test was reliable and (2) she faced an unconstitutional presumption of guilt at trial based on the Intoxilyzer test result. We affirm.

FACTS

At approximately 1:00 a.m. on May 13, 2003, Lino Lakes Police Officer Adam Halverson stopped appellant Wendy Birk for an improper lane change. Halverson noticed a strong odor of alcohol while speaking with Birk. He also observed that she had slurred speech and bloodshot, watery eyes. Halverson asked Birk to perform several field sobriety tests. Based on Birk's performance of the sobriety tests, Halverson believed that Birk was under the influence of alcohol and placed her under arrest for DWI.

Halverson read the implied consent advisory to Birk, who agreed to take a breath test. Halverson testified that the Intoxilyzer indicated that it was functioning properly and performing all the necessary calibrations to provide an accurate reading. At 1:42 a.m., Halverson administered the Intoxilyzer test, which produced an alcohol concentration reading of.14.

Birk was charged with third-degree DWI (driving under the influence of alcohol), in violation of Minn. Stat. §§ 169A.20, subd. 1(1),.27, subd. 1(a) (2002), and third-degree DWI (.10 or more within two hours of driving), in violation of Minn. Stat. §§ 169.20, subd. 1(5),.27, subd. 1(a) (2002). The case proceeded to trial, during which Birk moved for a judgment of acquittal. In support of the motion, Birk argued that the state failed to prove the reliability of the Intoxilyzer test and that the state failed to prove that her alcohol concentration was.10 or more within two hours of driving. The district court denied the motion. The jury found Birk guilty of the charged offenses. This appeal followed.

ISSUES

I. Is the evidence sufficient to support the conviction of third-degree DWI (.10 or more within two hours of driving)?

II. Did the admission of the Intoxilyzer test result and the reading of the standard jury instruction defining the offense create an ...


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