The Minnesota DWI Case Of The Week is State v. Abduljabbar (Decided July 16, 2018, Minnesota Court of Appeals, Unpublished) which stands for the proposition that if you do not object to the foundation for the admission of a Minnesota DWI breath test result, you have waived the right to object on appeal.
In Abduljabbar, the defendant was pulled over for having a loud muffler. After the officer who pulled over Abduljabbar smelled alcohol and noticed that Abduljabbar's eyes were watery and bloodshot, she arrested Abduljabbar and took him to the Osseo police department for breath testing. That test indicated an alcohol concentration of 0.12.
A jury trial was held on and the state called one witness—the police officer who arrested Abduljabbar and performed the breath test. She testified that she was certified to operate the breath-test machine and that she knew how to recognize if the machine was not functioning properly. Although the officer testified that the machine was a "DataMaster transportable gas spectrometer with infrared option," she did not testify as to the specific model number, nor does that model number appear anywhere in the record. After describing how she went about operating the machine when testing Abduljabbar's breath, the officer testified, without objection, that machine measured a 0.12 alcohol concentration.
The Defendant was found guilty and on appeal, he argued that that the district court erred in admitting the results of the breath test without the state first (1) laying foundation that the machine used was one of the models approved by the Commissioner of Public Safety or (2) if it was not one of those models, laying foundation that the machine used provides a trustworthy and reliable measure of the alcohol in breath.
The Minnesota Court of Appeals rejected the Defendant's argument finding that any objection to the test result was waived at the trial. The Appellate Court noted:
"Generally, when a defendant fails to object to the admission of evidence at trial, the defendant forfeits review of that admission on appeal. State v. Fraga, 898 N.W.2d 263, 276 (Minn. 2017). However, "the plain-error rule provides a limited power to correct certain errors that a defendant has forfeited." Id. at 277 (quotation omitted).
The plain-error rule requires a defendant to establish (1) an error, (2) that is plain in that it violates or contradicts case law or a rule, and (3) that the error affects the defendant's substantial rights. If all three requirements are met, we then determine whether relief is required to ensure fairness and the integrity of the judicial proceedings."
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"Although there is no on-the-record foundation that makes Abduljabbar's breath-test result admissible under Minn. R. Evid. 702 (or that exempts it from the rule's foundation requirement under Minn. Stat. § 634.16), this foundation is lacking because Abduljabbar did not object and force the state to lay it. Had Abduljabbar done so, the state could have asked the arresting officer what model of breath-test machine was used or else called an expert to testify as to the reliability of the device. Indeed, Abduljabbar is unable to cite any case where a Minnesota appellate court has, on plain-error review, reversed a conviction on the basis that otherwise admissible testimony was improperly admitted because the requisite foundation was not presented to the district court."
Moral Of The Story: Only the squeaky wheel gets the grease!
If you or a loved one have been arrested for a Minnesota DWI, or are facing a DWI forfeiture of your motor vehicle, feel free to contact Minneapolis DWI Attorney, F. T. Sessoms at (612) 344-1505 for answers to all of your Minnesota DWI questions.
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