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 Junker v. Commissioner of Public Safety (Decided March 25, 2019, Minnesota Court Of Appeals, Published) which stands for the proposition that a person who burps during the observation period is not entitled to have the data master test result thrown out unless they can prove the test results were affected by the burp.

In Junker, the Petitioner was arrested for a DWI and tested at a .09 % BAC on the data master machine.  Petitioner challenged his license revocation arguing that he burped during the observation period and, therefore, the test result was unreliable.  The district court sustained the revocation of the license and on appeal, the Minnesota Court of Appeals affirmed, stating:

"...the Minnesota Bureau of Criminal Apprehension and officer training require that a driver be observed for at least 15 minutes before a breath test is administered. The purpose of the observation period is to ensure that mouth alcohol does not contaminate a driver’s breath samples. For breath-test results to be admitted into evidence, the commissioner has the burden of establishing that the test is reliable and that the administration of the test conformed to the procedure necessary to ensure its reliability. State v. Dille, 258 N.W.2d 565, 567 (Minn. 1977). To meet this burden, a breathalyzer test must be “conducted by a certified operator,” and the commissioner must establish “that the machine was in proper working order and the chemicals in proper condition.” Bielejeski v. Comm ’r of Pub. Safety, 351 N.W.2d 664, 666 (Minn. App. 1984). After the breath-test results are admitted, the burden shifts to the driver to challenge the credibility of the results."

"...the district court found that Junker burped during the observation period. But even though Junker proved that he burped during the observation period, he failed to demonstrate that the burping actually affected his breath- test results. See Hounsell, 401 N.W.2d at 96 (stating that to meet burden, driver must sufficiently demonstrate that his test results were affected by the burping)."

"...the caselaw is clear: “Even if a driver can prove that he had something in his mouth, he must also demonstrate that the substance actually affected his results.” Id. Additionally, the commissioner offered substantial evidence that DataMaster has built-in safeguards that provide an invalid result if the system detects mouth alcohol. The Trooper Anderson testified that Junker’s test results passed the machine’s internal test, and Junker did not refute this evidence."

Moral Of The Story:  When you burp, it is not enough to say "excuse me".