Minneapolis DWI Attorney F. T. Sessoms Blogs on Minnesota DWI: This Week's Featured Minnesota DWI Case

The Minnesota DWI Case Of The Week is State v. Abduljabbar (Decided July 16, 2018, Minnesota Court of Appeals, Unpublished) which stands for the proposition that if you do not object to the foundation for the admission of a Minnesota DWI breath test result, you have waived the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."

***

"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.

Minneapolis DWI Attorney F. T. Sessoms Blogs on Minnesota DWI: This Week's Featured Minnesota DWI Case

The Minnesota DWI Case Of The Week is State v. Mahoney and McCarthy (Decided July 17, 2017, Minnesota Court of Appeals, Unpublished) which stands for the proposition that the presumption of admissibility of a Data Master test result does not prevent the defense from challenging the accuracy or reliability of the test.

In Mahoney and McCarthy, the appeals were consolidated and in their respective cases, each appellant provided two breath samples after being suspected of driving while impaired in 2015. The results were obtained from the DataMaster DMT-G, a breath-testing instrument approved by the commissioner of public safety.,Mahoney's breath samples registered at 0.129 and 0.125, with a final value of 0.12 alcohol concentration. He was charged with second-degree driving while impaired. McCarthy's breath samples registered at 0.106 and 0.100, with a final value of 0.10 alcohol concentration. He was charged with fourth-degree driving while impaired, driving with an alcohol concentration of .08 or more.

Appellants consolidated their cases and moved to suppress the individual test results, arguing that the results were not scientifically valid or reliable. The district court held a two-day pretrial hearing on the admissibility of the test results.  

The district court found that the individual breath test results were not foundationally reliable under Rule of Evidence 702. But the district court did not suppress the test results, concluding that Minnesota Statutes section 634.16 "moves all issues of reliability from pretrial litigation to the fact-finder at trial," thus creating "blanket admissibility."

After the district court denied appellants' motions to suppress, the parties agreed to stipulate to the state's evidence (including the individual test results) and submit the matter to the district court for a trial under Minnesota Rule of Criminal Procedure 26.01, subdivision 4.  

After being found guilty by the district court, the appellants argued to the Appellate Court that the district court erred by determining, as a matter of law, that Minnesota Statutes section 634.16 requires the results of an approved breath test be admitted into evidence.

The Minnesota Court of Appeals in its ruling affirmed the district court stating:

"According to Minnesota Statutes section 634.16, the results of an approved breath test are admissible in evidence without foundational expert testimony. The statute provides as follows:

In any civil or criminal hearing or trial, the results of a breath test, when performed by a person who has been fully trained in the use of an infrared or other approved breath-testing instrument ... are admissible in evidence without antecedent expert testimony that an infrared or other approved breath-testing instrument provides a trustworthy and reliable measure of the alcohol in the breath."

"We do not interpret this language in a vacuum. Rather, as appellants acknowledge, we are guided by our interpretation of an identical statute, which applies to the admission of blood-analysis test results. State v. Pearson. 633 N.W.2d 81, 85 (Minn. App. 2001)."

In Pearson the court held that the legislature may enact statutes that shift the burden of proof by creating rebuttable presumptions.  "Accordingly, while the statute in Pearson provided that the evidence 'shall be admissible,' Minn. Stat. § 634.15, this court concluded that the statute 'merely establishes a presumption of reliability that the driver may choose to rebut with live testimony.' Id. at 86 (emphasis added). As the court noted: 'A defendant in a criminal case may challenge the accuracy or reliability of the test by subpoenaing the laboratory assistant or BCA analyst to testify.. . allowing the court the opportunity to determine if the admission of the evidence was unfairly prejudicial.'"

"Here, the district court appropriately interpreted the statute consistently with Pearson.  The court found that the commissioner established a prima facie case that the DataMaster DMT-G tests are reliable, a finding unchallenged by appellants. The burden then shifts to petitioners in a license-revocation proceeding to dispute the test's validity and trustworthiness."

"Despite this backdrop, appellants argue that the district court's decision to admit the DataMaster DMT-G test results—after the pretrial determination that the test measurements lacked foundation—makes the test results unassailable and interferes with the judicial function. We disagree. Once a prima facie case of reliability is established, that case may be disputed by producing specific evidence that the test results were invalid. But Pearson does not require that this opportunity to dispute the test results occurs in a pretrial setting, as appellants appear to suggest. Rather, as the district court ruled, the statute 'moves all issues of reliability from pretrial litigation to the fact-finder at trial.'"

"Appellants chose not to challenge the results of the DataMaster DMT-G at trial. Instead, they stipulated to the state's evidence and proceeded to a court trial where they were ultimately found guilty. Because the district court did not err in its interpretation of section 634.16 or in its corresponding decision to admit the individual breath test results at trial, we affirm."

Moral Of The Story:  One should rarely, if ever, waive the right to a jury trial!

If you or a loved one have been arrested for a Minnesota DWI, feel free to contact Minneapolis DWI Attorney, F. T. Sessoms at (612) 344-1505 for answers to all of your Minnesota DWI questions.

Minnesota DWI Lawyer F. T. Sessoms Blogs on Minnesota DWI: This Week's Featured Minnesota DWI Case

The Minnesota DWI Case Of The Week is Johnson v. Commissioner of Public Safety (Decided June 12, 2017, Minnesota Court of Appeals, Unpublished) which stands for the proposition that the Data Master breath tests results are admissible without antecedent expert testimony.  The case also stands for the proposition that if you choose to represent yourself in a DWI case, you have absolutely no chance of winning.

In January 2016, Johnson petitioned the district court for rescission of the revocation of his driver's license. The district court conducted an implied-consent hearing in late March 2016. Johnson appeared pro se. The commissioner called three witnesses: Officer Lasher, Officer Garcia, and Officer Hicks. Johnson testified but did not call any other witnesses. In July 2016, the district court issued an order sustaining the revocation and Mr Johnson appealed claiming the Data Master Breath test result  of .12 was unreliable.

The Minnesota Court of Appeals rejected Mr. Johnson's appeal noting:

"A driver may challenge the revocation of his or her driver's license by raising the following issue: "Was the testing method used valid and reliable and were the test results accurately evaluated?" Minn. Stat. § 169A.53, subd. 3(b)(10) (Supp. 2015). If a breath test is challenged, the commissioner has the initial burden of showing that the test is reliable and that its administration in the particular instance conformed to the procedure necessary to ensure reliability...If the commissioner satisfies the initial burden,[t]he driver must then produce evidence to impeach the credibility of the test results."

"Officer Hicks testified that he is a certified DataMaster operator, that he received training from the bureau of criminal apprehension (BCA), and that the DataMaster performed diagnostic tests within acceptable limits on the day in question. Johnson cross-examined Officer Hicks by asking him whether he is an "international scientist in measurement," a "doctor," or a "forensic scientist." Officer Hicks answered each question in the negative. Johnson concluded by asking Officer Hicks whether he "performed any diagnostic tests that would have recorded bias and uncertainties of your DataMaster machine?" Officer Hicks again answered in the negative."

"The district court noted the evidence that Officer Hicks is a

certified DataMaster operator and that he had received training and certification from the BCA. The district court also found that "nothing out of the ordinary occurred that would skew the reliability of the test results."

"On appeal, Johnson contends that the DataMaster is not accurate or reliable. He makes a few broad assertions in support of that contention, but he does not cite any evidence that was introduced at the implied-consent hearing. His cross-examination of Officer Hicks did not expose any particular reasons why the test results might not be accurate or reliable. Likewise, Johnson did not testify to the assertions that he makes in his appellate brief. His own testimony was very brief and was limited to introducing evidence that he was taking prescription medication on the day of his arrest. Given the scarcity of relevant evidence elicited by Johnson, we conclude that he failed to introduce any evidence that might "impeach the credibility of the test results." See Bielejeski, 351 N.W.2d at 666. Thus, the DataMaster test results are reliable."

Moral Of The Story:  Once again proving that if you choose to represent yourself, you have a fool for a client.

If you or a loved one have been arrested for a Minnesota DWI, feel free to contact Minnesota DWI Lawyer, F. T. Sessoms at (612) 344-1505 for answers to all of your Minnesota DWI questions.

Minneapolis DWI Attorney F. T. Sessoms Blogs on Minnesota DWI: This Week's Featured Minnesota DWI Case

The Minnesota DWI Case Of The Week is State v. Norgaard (Decided June 5, 2017, Minnesota Court of Appeals, Published) which stands for the proposition that the State can admit the results of a DataMaster test without expert testimony as to the reliability of the testing machine.

In Norgaard, the Defendant was arrested for DWI and agreed to submit to a breath test at the police station.  The DataMaster breath test result was 0.13.  

Trial took place on January 5, 2016. Norgaard waived his right to a jury trial (never a good idea).  The arresting officer testified that he administered the breath test with a DataMaster breathalyzer, that he is trained to operate the device, and that he is a certified DataMaster operator. He further explained the limitations of the breathalyzer and how he administers the test. The state introduced the results of the breath test. Norgaard objected, arguing that the state failed to produce evidence regarding the reliability of the DataMaster breathalyzer.

The district court took judicial notice of the fact that the commissioner of public safety had approved the DataMaster breathalyzer. Norgaard again objected, arguing that the district court could not take judicial notice in a criminal case.  The district court found Norgaard guilty of driving with an alcohol concentration of 0.08 or more and the Defendant appealed but to no avail.

In its opinion, the Court of Appeals notes that, "Judicial notice of adjudicative facts is not appropriate in criminal cases" but "Adjudicative facts are facts about the parties, their activities, properties, motives, and intent."  The Appellate Court then observed, "Courts regularly take notice of legislative facts, such as statutes, caselaw, and regulations, in criminal cases.  Here, the district court took judicial notice that the commissioner of public safety has approved the DataMaster breathalyzer as an "infrared or other approved breath-testing instrument." Minn. Stat. § 169A.03, subd. 11 (2014); see Minn. R. 7502.0425 (2015). Minn. Stat. § 634.16 (2014) permits the admission of any breath test performed by a fully trained individual using an approved breath-testing instrument, "without antecedent expert testimony that [the instrument] provides a trustworthy and reliable measure of the alcohol in the breath." The Court held the district court did not abuse its discretion in admitting the test results.

Moral Of The Story:  Once again proving that if you choose to represent yourself, you have a fool for a client.

If you or a loved one have been arrested for a Minnesota DWI, feel free to contact Minneapolis DWI Attorney, F. T. Sessoms at (612) 344-1505 for answers to all of your Minnesota DWI questions.

Minneapolis DWI Attorney Blogs on Minnesota DWI: This Week's Featured Minnesota DWI Case

The Minnesota DWI Case of the Week is Torgerson v. Commissioner of Public Safety (Decided January 25, 2016, Unpublished, Minnesota Court of Appeals) which stands for the proposition that a breath test result will be deemed "reliable" even if the fuel cell on the DataMaster breath machine has been turned off.

In Torgerson, the Petitioner was arrested for a DWI and agreed to submit to a breath test at the police station where he tested over the legal limit of .08. The Petitioner challenged the revocation of his license noting that the DataMaster has two breath-alcohol measuring devices contained within the machine, i.e. : (1) infrared measuring device and, (2) a fuel cell measuring device.  And since the fuel cell measuring device on the machine was turned off, the Petitioner argued that with the fuel cell disabled, the scientific procedures necessary to ensure an accurate and reliable alcohol concentration test were not performed and that the revocation should, therefore, be rescinded.

The District Court sustained the revocation and on appeal, the Minnesota Court of Appeals affirmed the District Court, stating:

"A breathalyzer test reading conducted by a certified operator may be admitted into evidence if it is established that the machine was in proper working order and the chemicals in proper condition. Once a prima facie showing of trustworthy administration has occurred, it is incumbent on the opponent to suggest a reason why the test was untrustworthy." (citation omitted)

"Minn. Stat. § 169A.03, subd. 11 (2014) defines 'infrared or other approved breath-testing instrument' as 'a breath-testing instrument that employs infrared or other technology and has been approved by the commissioner of public safety for determining alcohol concentration.'  Minn. R. 7502.0425, subs. 2 (2015) states 'the DataMaster DMT-G is approved by the commissioner for the purpose of determining the alcohol concentration of a breath sample, proved that the sample is analyzed using either the unit's infrared technology or the unit's infrared technology in conjunction with its fuel cell technology'".

"The district court found no evidence that the DataMaster results are not accurate and reliable because the fuel-cell option was disabled and ruled that, rather than merely point to an alleged defect, appellant must demonstrate that the alleged defect actually affected the test results.'

The Court of Appeals then ruled that, "The DataMaster DMT-G with Fuel Cell Option is an approved instrument for analyzing a breath sample, using either the unit's infrared technology, or the infrared technology in conjunction with the fuel-cell technology. The officer who conducted the test was a certified operator; the machine was in proper working order; and there was no indication that the chemicals were not in proper condition...Thus, the state satisfied its burden for an admissible breath test."

Moral Of The Story: Good Enough For Government Work.

If you or someone you know has been arrested for a Minnesota DWI, feel free to contact Minneapolis DWI Attorney, F. T. Sessoms at (612) 344-1505 for answers to all of your Minnesota DWI questions.