County District Court File No. 70-CR-15-11465
Swanson, Attorney General, St. Paul, Minnesota; and Ronald
Hocevar, Scott County Attorney, Todd P. Zettler, Assistant
County Attorney, Shakopee, Minnesota (for respondent)
Kenneth Norgaard (pro se appellant)
Considered and decided by Hooten, Presiding Judge; Reilly,
Judge; and Smith, John, Judge.
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.
John, Judge [*]
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.
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.
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.
the district court err by taking judicial notice that the
DataMaster breathalyzer was a breath-testing instrument,