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Junker v. Commissioner of Public Safety

Court of Appeals of Minnesota

March 25, 2019

Jace William Junker, petitioner, Appellant,
v.
Commissioner of Public Safety, Respondent.

          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 ...

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