Koochiching County District Court File No. 36-CV-17-565
Charles A. Ramsay, Daniel J. Koewler, Ramsay Law Firm,
P.L.L.C., Roseville, Minnesota (for appellant)
Keith
Ellison, Attorney General, Leah M.P. Hedman, Assistant
Attorney General, St. Paul, Minnesota (for respondent)
Considered and decided by Worke, Presiding Judge; Schellhas,
Judge; and Slieter, Judge.
SYLLABUS
To
impeach the credibility of breath-test results on the basis
of burping, belching, or vomiting during the pretest
observation period, a driver must sufficiently demonstrate
that the burping, belching, or vomiting actually affected the
test results.
OPINION
SCHELLHAS, JUDGE.
Appellant
challenges the district court's order sustaining the
revocation of his driver's license, arguing that he
successfully impeached his breath-test results by proving
that he burped during the pretest observation period. Because
appellant failed to sufficiently demonstrate that his burps
affected the test results, we affirm.
FACTS
Trooper
Andrew Anderson arrested appellant Jace Junker on probable
cause for driving while impaired and read Junker the
implied-consent advisory. Junker agreed to provide a breath
sample for an alcohol-concentration test. Trooper Anderson
conducted the pretest observation period for 17 minutes.
During this time, Trooper Anderson did not see Junker burp,
belch, or vomit. At the end of the observation period,
Trooper Anderson asked Junker if he had vomited, whether
"he had burped anything into his mouth," or whether
"something entered his mouth," and Junker answered
no. Trooper Anderson did not ask Junker whether he had burped
or belched. Using the DataMaster, Trooper Anderson tested two
samples of Junker's breath. The DataMaster reported an
alcohol concentration of 0.09 and did not detect mouth
alcohol.
Respondent
Minnesota Commissioner of Public Safety revoked Junker's
driver's license based on the breath-test results. Junker
petitioned for judicial review, and the district court
conducted a hearing. At the implied-consent hearing, when the
commissioner offered the breath-test results into evidence,
the court asked if Junker had any objection. His counsel
replied, "without waiving the ultimate issue, I have no
objection." Junker testified at the hearing that he
burped during the observation period, but he offered no
evidence that the burps actually affected his test results.
Junker's counsel stated, in part, in his closing remarks,
as follows:
If the person conducting the observation period wasn't
doing it correctly, and I'm sure counsel will correct me
if I'm misstating there, but it gets kicked entirely. If
it wasn't conducted perfectly, the burden is then on the
petitioner to show that there was burping, belching or
vomiting and then at that point, the test also gets kicked.
But the burden does get shifted, it turns into a credibility
determination, is what this case will boil down to.
Counsel
for the commissioner responded that
the burden is not to show that belching happened or a
specific event happened. It's to show that [it] actually
influenced the outcome of the test. So it's not
necessarily that an action occurred, but it impacts the
reliability of the test result, it is the actual introduction
of a substance or an actual impact on the tests result that
...