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State v. Brazil

Court of Appeals of Minnesota

December 26, 2017

State of Minnesota, Respondent,
Daniel Patrick Brazil, Appellant.

         Hennepin County District Court File No. 27-CR-16-2585

          Lori Swanson, Attorney General, St. Paul, Minnesota; and Susan L. Segal, Minneapolis City Attorney, David Bernstein, Assistant City Attorney, Minneapolis, Minnesota (for respondent)

          Charles A. Ramsay, Daniel J. Koewler, Ramsay Law Firm, P.L.L.C., Roseville, Minnesota (for appellant)

          Considered and decided by Worke, Presiding Judge; Rodenberg, Judge; and Reilly, Judge.


         A DataMaster breath-test result is direct evidence of the alcohol concentration in a person's body, and a conviction based on such a result and report is reviewed under the traditional direct-evidence analysis.


          RODENBERG, Judge.

         Appellant Daniel Patrick Brazil, convicted of third-degree driving while impaired (DWI), challenges the sufficiency of the evidence supporting his conviction, arguing that a DataMaster test (DMT) result is circumstantial evidence of alcohol concentration and that there are rational inferences from the circumstances proved that are inconsistent with his guilt. We hold that a DMT result is direct evidence of alcohol concentration and affirm appellant's conviction under a traditional sufficiency-of-direct-evidence analysis.


         Appellant was arrested on November 8, 2015, after he crashed his car into another car. Appellant consented to a breath test, and the DMT device measured and reported appellant's alcohol concentration as 0.16. Appellant was charged with two counts of third-degree DWI under Minn. Stat. § 169A.20, subds. 1(1) and 1(5), with reference to Minn. Stat. § 169A.26 (2014) (including the aggravating factor of an alcohol concentration of 0.16 or more pursuant to Minn. Stat. § 169A.03, subd. 3(2) (Supp. 2015)). Appellant waived his right to a jury trial, and admitted under oath that he drank enough alcohol to affect his ability to safely drive a motor vehicle before he drove and crashed his car into a parked car. He also admitted that his alcohol concentration was 0.08 or more as measured within two hours of driving. Appellant denied that his alcohol concentration was 0.16 or more, an element necessary to the gross-misdemeanor charges. That element was tried to the court.

         The parties stipulated to the following facts at trial: (1) appellant declined to submit to any field sobriety testing; (2) appellant was not wearing perfume and had not used hand sanitizer or hair spray on the day of the incident; (3) appellant did not notify law enforcement of any health conditions; (3) appellant was observed by police officers for 15 minutes before he provided a breath sample for the DMT and did not burp, belch, or vomit during that time; (4) Trooper Ben Olson, a certified DMT operator, properly administered the test; and (5) the DMT results could be admitted into evidence. The only issue for trial was whether the DMT results were sufficient to support the aggravating element of an alcohol concentration of 0.16 or more.

         The state presented testimony from Karin Kierzek, a forensic scientist with the Minnesota Bureau of Criminal Apprehension (BCA). Kierzek testified that every DMT device in use in Minnesota comes to the BCA's lab annually for maintenance checks, calibration, and certification. All machines must provide results within the acceptable 0.003 or 3% margin of error in order to pass calibration. Kierzek also testified that DMT devices have a number of internal and external checks to ensure accuracy. These checks begin with having a trained operator administer the test. The operator observes the subject for at least 15 minutes to verify that the subject is not introducing mouth alcohol by burping, belching, or regurgitating. The DMT device tests itself by running a diagnostic test, which includes using air blanks to clear the sample chamber and ensure that there is no residual alcohol or measurable alcohol in the air surrounding the machine. The subject then provides two breath samples a minimum of three minutes apart to safeguard against measuring mouth alcohol, and a control sample runs between the two breath samples to determine if the instrument is working properly when it evaluates a known alcohol concentration. If the two breath samples from the subject are not comparable, the test results are deemed insufficiently reliable and retesting is suggested.

         The DMT results showed that the DMT device used to test appellant's alcohol concentration went through the full sequence of checks and passed all of them. There is no indication of irregularity or malfunction. The air blanks produced readings of zero, meaning that the sample chamber was clear of alcohol. Appellant's first breath sample revealed an alcohol concentration of 0.164. The machine ran another air blank and a control sample with a target of 0.078, which produced a result of 0.077. Kierzek testified that the control sample reading was only 0.001 different than the known sample, which variance she testified was insignificant and meant that the machine was measuring alcohol accurately within tolerable limits. After the control-sample test, the machine ran another air blank, which again tested zero, and then appellant provided a second breath sample, which resulted in an alcohol concentration measurement of 0.175. One final air blank was run to clear the sample chamber and check the room air for any measurable alcohol. It also tested zero. Kierzek testified that appellant's final alcohol concentration was determined by taking the lower of the two reported sample results, 0.164, and dropping the third digit to reach a reported value of 0.16. This method of reporting "give[s] the most benefit to the subject, " according to Kierzek's testimony. Based on her review, Kierzek opined that appellant's breath-test results were accurate.

         Kierzek also testified that "[t]here is no perfect measurement" and no measurement can ever be absolutely accurate. She testified that there is an uncertainty-of-measurement range within which the tester could have confidence that a high percentage of results would fall. Factors that contribute to the uncertainty of measurement include the area in which the tests are performed, the instructions given by an operator, whether the subject is wearing cologne, and whether the subject has certain medical conditions. She testified that the uncertainty-of-measurement value "merely gives you a range of what you would expect to see given repeated samplings." For appellant's test in particular, Kierzek testified that, at the 99% confidence interval, the expected range of test results would be 0.1504 to 0.1886. The average from appellant's two breath-test results was 0.1695, and Kierzek testified that this is the "most likely result, " and that repeated test results "would be symmetric around that point." She also agreed that, had appellant's breath been tested a third time, it could have fallen anywhere within the confidence interval that she identified, from 0.1504 to 0.1886, and agreed that a third test falling anywhere within that range is "a distinct ...

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