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State v. Norgaard

Court of Appeals of Minnesota

June 5, 2017

State of Minnesota, Respondent,
v.
Justin Kenneth Norgaard, Appellant.

         Scott County District Court File No. 70-CR-15-11465

          Lori Swanson, Attorney General, St. Paul, Minnesota; and Ronald Hocevar, Scott County Attorney, Todd P. Zettler, Assistant County Attorney, Shakopee, Minnesota (for respondent)

          Justin Kenneth Norgaard (pro se appellant)

          Considered and decided by Hooten, Presiding Judge; Reilly, Judge; and Smith, John, Judge.

         SYLLABUS

         A district court may take judicial notice of the legislative facts in a criminal case that the commissioner of public safety, as authorized by Minn. Stat. Sec. 169A.03, subd. 11, and Minn. R. 7502.0425, had approved a DataMaster breathalyzer for use by law enforcement.

          OPINION

          Smith, John, Judge [*]

         We affirm appellant Justin Kenneth Norgaard's conviction for driving with an alcohol concentration of 0.08 or more because the district court did not abuse its discretion in admitting evidence of the DataMaster breath-test results.

         FACTS

         At approximately 1:37 a.m. on June 18, 2015, Officer Schmitz stopped a speeding vehicle. The driver of the vehicle, Norgaard, told Officer Schmitz that he was coming from a bar and had consumed too much alcohol to be driving. Officer Schmitz placed Norgaard under arrest and read the implied consent advisory, after which Norgaard consented to a breath test. Officer Schmitz used a DataMaster breathalyzer to conduct the breath test. According to the test, Norgaard had an alcohol concentration of 0.13. Norgaard was charged with driving while impaired and driving with an alcohol concentration of 0.08 or more.

         Trial took place on January 5, 2016. Norgaard waived his right to a jury trial. Officer Schmitz testified that he administered the breath test with a DataMaster breathalyzer, that he is trained to operate the device, and that he is a certified DataMaster operator. He further explained the limitations of the breathalyzer and how he administers the test. The state introduced the results of the breath test. Norgaard objected, arguing that the state failed to produce evidence regarding the reliability of the DataMaster breathalyzer. The district court took judicial notice of the fact that the commissioner of public safety had approved the DataMaster breathalyzer. Norgaard again objected, arguing that the district court could not take judicial notice in a criminal case. The district court found Norgaard guilty of driving with an alcohol concentration of 0.08 or more. Norgaard appeals.

         ISSUES

         I. Did the district court err by taking judicial notice that the DataMaster breathalyzer was a breath-testing instrument, ...


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