Hennepin County District Court File No. 27CV1122779.
Richard C. Kenly, Kenly Law Offices, Backus, Minnesota (for appellant)
Lori Swanson, Minnesota Attorney General, James Eric Haase, Assistant Attorney General, St. Paul, Minnesota (for respondent)
Considered and decided by Stoneburner, Presiding Judge; Johnson, Chief Judge; and Willis, Judge. [*]
Appellant challenges the district court order sustaining revocation of his driving privileges under the implied-consent law, arguing that the district court committed reversible error by excluding medical records and the testimony of an expert witness who would have testified about the effects of gastroesophageal reflux disease on appellant's Intoxilyzer 5000 test results. We affirm.
Appellant Daniel James Murtha challenges the revocation of his driving privileges by respondent Minnesota Commissioner of Public Safety based on the results of a November 11, 2011 breath test on the Intoxilyzer 5000. At trial, Murtha challenged only the accuracy of the test results. He attempted to introduce copies of medical records from a June 24, 2004 clinic visit to support his testimony that he suffers from gastroesophageal reflux disease (GERD) and that he experienced symptoms of acid reflux during the arrest and just prior to the administration of the breath test. The district court sustained respondent's hearsay objection to introduction of the records.
Murtha's expert witness, forensic toxicologist Thomas Burr, testified about the potential effect of mouth alcohol caused by GERD on Intoxilyzer test results. Mouth alcohol consists of alcohol that is regurgitated into the mouth from one's stomach. Burr testified that if mouth alcohol is present when the test is conducted, the results show a higher alcohol concentration than would be shown absent mouth alcohol. Burr testified that he had reviewed the police reports, Intoxilyzer record, and Murtha's medical records. But the district court sustained respondent's objection to a question calling for Burr's opinion "on [Murtha's] test itself on this particular [I]ntoxilyzer test." The district court agreed with respondent that the question called for speculation and Burr, who was not present at the time of testing, lacked a proper foundation to render an opinion.
Officer Jeremiah Jessen, who administered the Intoxilyzer test to Murtha, testified that he observed Murtha for 15 to 20 minutes before the test and did not observe Murtha belch, burp, or vomit. He testified that Murtha did not complain of indigestion, acid reflux, or any other medical condition at the time of the test. Murtha provided two deep-breath samples and the Intoxilyzer reported an alcohol concentration of .093 for each sample.
Respondent's expert, Bureau of Criminal Apprehension toxicologist David Edin, testified that if one of Murtha's breath samples had been "fortified" by transient mouth alcohol, one would expect a greater variance between the alcohol concentration of the two samples. He also testified that the Intoxilyzer will not accept a breath sample if the alcohol concentration rises then drops off as one would expect if a sample is fortified by transient mouth alcohol. Edin reviewed Murtha's test record and opined that he saw no reason to believe that mouth alcohol was present.
The district court found Officer Jessen's testimony credible and Murtha not credible and sustained the ...