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Vondrachek v. Commissioner of Public Safety

Court of Appeals of Minnesota

December 18, 2017

John Joseph Vondrachek, petitioner, Appellant,
v.
Commissioner of Public Safety, Respondent.

         Washington County District Court File No. 82-CV-16-3402

          Jeffrey S. Sheridan, Sheridan & Dulas, P.A., Eagan, Minnesota (for appellant)

          Lori Swanson, Attorney General, Maria N. Zaloker, Assistant Attorney General, St. Paul, Minnesota (for respondent)

          Considered and decided by Florey, Presiding Judge; Rodenberg, Judge; and Kirk, Judge.

         SYLLABUS

         A driver's Fourth Amendment rights are not violated when a police officer, acting on reasonable suspicion of impaired driving, asks the driver of a lawfully stopped motor vehicle to exit and perform roadside field sobriety tests.

          OPINION

          RODENBERG, JUDGE

         Appellant John Joseph Vondrachek appeals from the district court's order sustaining the revocation of his driver's license under Minn. Stat. §§ 169A.50 to .53 (2014), arguing that (1) the officer lacked probable cause to arrest him because the roadside sobriety tests and preliminary breath test were impermissible warrantless searches; and (2) the DataMaster breath-test result lacked a reliable foundational basis and should not have been admitted into evidence. We affirm.

         FACTS

         On July 24, 2016, at approximately 2:00 a.m., Officer John Miller of the Bayport Police Department was on patrol and stopped a car that was traveling 61 miles per hour in a posted 40-miles-per-hour speed zone. Officer Miller approached the car and spoke to the driver through the car window. He identified the driver as appellant from his driver's license. While speaking with appellant, Officer Miller "detected a strong odor of alcohol" on appellant's breath. When asked, appellant said that he had two alcoholic drinks before driving. Suspecting that appellant was driving under the influence of alcohol, but unsure of that, Officer Miller decided to investigate further.

         Officer Miller told appellant that he was "just going to have [him] step out real quick to make sure [he was] okay to be driving tonight, " intending to conduct roadside sobriety testing. After appellant got out of his car, Officer Miller had appellant complete the horizontal gaze nystagmus test. During this test, Officer Miller said he "observed lack of smooth pursuit in both right and left eye [a]nd nystagmus at maximum deviation at both left and right eye." These observations indicated that appellant was impaired by alcohol. Next, Officer Miller explained and demonstrated the nine-step walk-and-turn test. Appellant indicated that he understood the test and performed it without signs of impairment. Finally, Officer Miller explained the one-legged-stand test to appellant, who indicated that he understood the test. When appellant performed this test, Officer Miller noticed that appellant "used his arms for balance and swayed while balancing." This also indicated that appellant was impaired by alcohol. Officer Miller neither asked appellant if he wanted to complete the tests nor told him that he did not have to perform them.

         After appellant finished the roadside sobriety tests, Officer Miller administered a preliminary breath test (PBT) in accordance with Minn. Stat. § 169A.41, subd. 1 (2014). He neither sought a warrant nor asked appellant if he wanted to complete the test; instead, Officer Miller described the test, asked appellant if he understood it, and then appellant supplied an adequate breath sample. The record contains no evidence of any objection or refusal to comply with this PBT testing. Officer Miller, the only witness at the implied-consent hearing, was asked whether he had made an "offer" of a PBT test. He testified that he had. When asked, "[d]id [appellant] agree to take a PBT?, " the officer answered, "He did." On cross-examination, Officer Miller agreed that he did not ask appellant "whether or not he wanted to do [the PBT]." The PBT revealed an alcohol concentration of 0.13. Based on the tests and Officer Miller's training and experience, he believed that appellant was under the influence of alcohol and arrested appellant for driving while impaired. Appellant was placed in the back of the squad car at 2:14 a.m.

         Officer Miller took appellant to the Washington County Jail, arriving just before 2:20 a.m. At 2:22, Officer Miller went to the restroom. He left the restroom at 2:24. Officer Miller then read appellant the implied-consent advisory at 2:30, and appellant agreed to a breath test using the DataMaster DMT-G (DMT). Officer Miller, a certified DMT operator who had attended a three-day training at the Bureau of Criminal Apprehension on how to use the DMT, testified that a 15-minute observation period immediately preceding the test is important to ensure the accuracy and reliability of the test. Officer Miller further testified that, before conducting the DMT test, he observed appellant for 15 minutes from the time of arrest and that he did not notice appellant burp, belch, vomit, place anything in his mouth, or do anything else of concern. However, the district court, taking Officer Miller's restroom break into account, found that "[b]ased on the timeline, . . . there was neither a continuous [n]or direct observation of [appellant] that lasted for more than ten minutes."

         The DMT process began at 2:39. Before appellant provided a breath sample, the DMT performed a diagnostic check, which showed that the machine was operating correctly. Next, the machine ran through an air-blank test, which produced results within acceptable limits. Appellant then provided his first breath sample at 2:42, which showed a result of 0.128. There was another air-blank test, a control sample test, and a third air-blank test, all of which produced results within acceptable limits. Appellant provided a second breath sample at 2:48, which showed a result of 0.122. Finally, the DMT ran another air-blank test, which produced a result within acceptable limits. The DMT printed a final report at 2:49 showing appellant's alcohol concentration as 0.12. Officer Miller testified that he did not notice anything during the test that suggested that the DMT was not in working order and that he believed the results of the test were accurate.

         The district court found that there was sufficient admissible evidence to establish probable cause to arrest appellant and invoke the implied-consent law even before the roadside sobriety tests. The district court went on to hold that, because roadside sobriety tests and PBTs are not considered full searches and are therefore not subject to the Fourth Amendment warrant requirement, the evidence gathered from these tests was admissible. Finally, the district court found that respondent established that the DMT test was reliable and that "Officer Miller's failure to properly observe [appellant] does not invalidate the test results unless [appellant] in fact ingested or regurgitated a substance that affected the result." Since there was "no evidence or claim that [appellant] burped, belched, vomited or had any substance in his mouth that would ...


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