This opinion will be unpublished and may not be cited except as provided by Minn . Stat. § 480A.08, subd. 3 (201 4 ). STATE OF MINNESOTA IN COURT OF APPEALS A15
- 0195 Randy Lee Torgeson, petitioner,

Appellant,

vs Commissioner of Public Safety, Respondent. Filed January 25, 2016 Affirmed Connolly , Judge Goodhue County District Court File No. 25

- CV

- 14

- 2358
Jeffrey S. Sheridan, Sheridan & Dulas, P.A., Eagan, Minnesota (for appellant) Lori Swanson, Attorney General, William J. Young, Joan M. Eichhorst, Assistant Attorney s General, St. Paul, Minnesota (for respondent)

Considered and decided by Cleary , Chief Judge; Connolly , Judge; and Johnson , Judge

. U N P U B L I S H E D O P I N I O N CONNOLLY , Judge Appellant challenges an order sustaining his driver’s license revocation and plate impoundment , arguin g that field sobriety tests are Fourth A mendment searches and2

because the commissioner failed to get a warrant or prove a valid exception to the warrant requirement, the evidence obtained from the field sobriety tests is inadmissible , and that the district court erred in admitting the DataMaster test results when the commissioner did not establish foundation for the test because procedures necessary to ensure an accurate and reliable test were not followed. 1
Beca use we find that field sobriety tests are Fourth Amendment searches that require only reasonable suspicion and because we find that the district court did not err in admitting the DataMaster test results , we affirm. FACTS On September 27, 2014 appellant Ra ndy Lee Torgeson ’s vehicle was reported crossing the fog line and center line and hit ting the median. Upon arriving at appellant’s home, a police officer observed appellant unloading a crock pot from the trunk of the vehicle. The officer , approached appe llant who informed the officer that he had just arrived at home and had been driving. The officer observed that appellant’s speech was slurred and that his eyes were red and watery. Appellant admitted drinking apple wine earlier in the day. T he officer then had appellant perform field sobriety tests , which revealed several

1 Appellant also argues that the DataMaster evidence is inadmissible because it was obtained from appellant in violation of his Fourth Amendment rights and without a warrant or an exception to the warrant requirement and t hat the breath test result should have been suppressed because the criminal test refusal statute is unconstitut ional and therefore the implied

- consent advisory read to appellant violated his conditional right to due process and the doctrine of unc onstituti onal conditions. A ppellant recognizes that State v. Bernard , 859 N.W.2d 762 (Minn. 2015), cert. granted , 83 U.S.L.W. 3916 ( U.S. Dec. 11, 2015) (No. 14

- 1470) precludes these arguments and raises the issues only to preserve them pending the Supreme Court ’s review of Bernard

.3

indicia of intoxication. The officer then performed a preliminary breath test ( PBT ) , which measured appellant’s alcohol concentration at 0 .115. The officer arrested appellant for

sus picion of DWI and transported him to the Public Safety Building. There, the officer read appellant the Minnesota Implied

- Consent Advisory, recorded appellant’s responses on the form, gave appellant an opportunity to consult with counsel , and asked if appe llant would take a breath test. A ppellant agreed and a breath sample was taken by an officer who was a certified operator of the DataMaster DMT

- G with fuel

- cell option machine (DataMaster DMT

- G) . The DataMaster DMT

- G worked properly and indicated no errors in the sampling process. App ellant’s BAC was measured at 0 .13. The fuel

- cell option on the machine used by the officer had been disabled by the Bu reau of Criminal Apprehension ( BCA ) , and the police did not have a warrant to conduct the field sobri ety tests, the PBT, or the DataMaster DMT

- G

. D E C I S I O N I. Did the district court err by admitting the results of the field sobriety tests? Appellant argues for suppre ssion of the results of the field sobriety tests on the ground that field sobriety t ests are searches that must be supported by probable cause and a warrant. This court reviews questions of law de novo. In re Collier , 726 N.W.2d 799, 803 (Minn. 2007). Under current Minnesota law, field sobriety tests need be supported only by reasonab le, articulable suspicion that the driver is impaired. See State, Dep ’ t. of Pub. Safety v. Juncewski , 308 N.W.2d 316, 321 (Minn. 1981) (holding that an officer appropriately administered field sobriety tests and a preliminary breath test because the offic er had4

reasonable, articulable suspicion that the person had been driving while impaired); State v. Klamar , 823 N.W.2d 687, 696 (Minn. App. 2012) (determining that an officer’s observation of two indicia of intoxication constituted reasonable , articulable suspicion to justify field sobriety tests and preliminary breath testing). Appellant argues that following Missouri v. McNeely , 133 S. Ct. 1552 (2013) Minnesota law regarding the admissibility of field so briety tests is now unconstitutional. We disagree. McNeely dealt specifically with the application of the exigent

- circumstances exception to a warrantless blood test. A blood test, “which involve[s] a compelled physical intrusion beneath [a suspect’s] skin and into his veins,” is subject to the Fourth Am endment warrant requirement. McNeely , 133 S. Ct. at 1558 (stating that the warrant requirement “applies to the type of search at issue in this case , which involved a compelled physical intrusion beneath McNeely’s skin and into his veins

. . . . ”); see als o State v. Trahan , 870 N.W.2d 396 , 401 (Minn. App. 2015) (“A blood draw is undeniably intrusive

. . . . ”) , review granted (Minn. Nov. 25, 2015) . Although McNeely and Trahan clarified th at probable cause is required by the Fourth Amendment as applied to blood tests, those cases do not address whether field sobriety tests are subject to the warrant requirement. Because we do not believe that McNeely render ed the law regarding the admissibility of field sobriety tests to be unconstitutional , we adhere to binding Minnesota precedent that requires only reasonable suspicion of drunk driving to administer field sobriety tests.
A ppellant does not argue that the officer did not have reasonable, articulable suspicion that appellant had been driving while impaired at the time the officer asked appellant to perform field sobriety tests. Because the officer in this case had a reasonable,5

articulable suspicion , a warrant was not required and the district court did not err by admitting a ppellant’s field sobriety test results.
II. Did the district court err by admitting th e breath test result where the c ommissioner failed to establish foundation for the test’s scientific reliability? Appellant argues that the district court erred in admitting the result of the
DataMaster DMT

- G test because, with the fuel cell disabled, the scientific procedures necessary to ensure an accurate and reliable alcohol concentration test were not performed

w hen appellant was tested. “Evidentiary rulings rest within the sound discretion of the [district] court and will not be reversed absent a clear abuse of discretion. On appeal, the appellant has the burden of establishing that the [district] court abused its discretion and that appe llant was thereby prejudiced.” State v. Amos , 658 N.W.2d 201, 203 (Minn. 2003) (citation omitted). “A breathalyzer test reading conducted by a certified operator may be admitted into evidence if it is established that the machi ne 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). “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.” Ahrens v. Comm’r of Pub. Safety , 396 N.W.2d 6 53, 655

- 56 (Minn. App. 1986). In any civil or criminal hearing or trial, the results of a

breath test, when performed by a person who has been fully trained i n the use of an infrared or other approved breath

testing instrument . . . are admissible in evidence without antecedent expert testimony that the infrared or other approved breath

- testing instrument provides a trustworthy and reliable measur e of the alcoh ol in the breath.6

Minn. Stat. § 634.16 (2014). Minn. Stat. § 169 A.03, subd. 11 (2014) defines “[i] nfrared 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 , subp. 2 ( 2015 ) states “the [DataMaster DMT

- G] is approved by the commissioner for the purpose of determining the alcohol concentration of a breath sample, provided that the sample is analyzed using either the unit’s infrared technology or the unit’s infrared techno logy in conjunction with its fuel cell technology. ” (E mphasis added). Appellant does not dispute that t he officer was fully trained in the use of the
DataMaster DMT

- G and used the DataMaster DMT

- G in order to test appellant’s breath. Rather appellant a rgues that the record in this case establishes that the machine was not in proper working order. This argument is based on the following cross

- examination of the deputy charged with administering the DataMaster DMT

- G test by appellant ’s attorney :

Q. All r ight. And, again, whenever it looks at the sample in the test chamber, the Data Master, it performs both the fuel cell, as well as the infrared analysis, correct? A. If it is working correctly, yes.

. . . . Q. And so in order for that scientific safeguard to be working properly, again, everything needs to be up and running, both the infrared and the fuel cell, correct? A. Correct. And in

– in theory, as they built the machine [.] Appella nt argues that , because the fuel

- cell technology installed in the Data Master
DMT

- G was not turned on while the deputy ran appellant’s breath test, the test results are unreliable and therefore, inadmissible: “ [E] vidence shows that with the fuel cell technology7

disabled . . . the DataMaster can perform only 1/6 of the scienti fic analysis designed into the machine.” The district court found no evidence that the DataMaster DMT

- G results are not accurate and reliable because the fuel

- cell option was disabled and ruled that , rather than merely point to an alleged defect , appella nt must demonstrate that the alleged defect actually affected the test results. The district court concluded that “ [i] t is no more than lay speculation that the disabling of the fuel cells somehow affected the accuracy or reliability of test result or mad e the test resul t 1/6 a[s] reliable as before. ”
T he district court did not clearly abuse its discretion in admitting the test result

. Minn. Stat. § 634.16 states that an approved breath

- testing instrument, as defined by Minn. Stat. § 169A.01, subd. 11, provides a trustworthy and reliable measure of the alcohol in the breath. Minn. R. 7502.0425 , subp. 2 , provides that the DataMaster DMT

- G with Fuel Cell Option is an approved instrument for analyzing a breath sample, using either the un it ’ s infrared technology, or the infrared technolo gy in conjunction with the fuel

- cell technology. The officer who conducted the test was a certified operator ; the machine was in proper working order as defined by Minn. Stat. § 634.16; and there was no in dication that the chemicals were not in the proper condition. See Bielejeski , 351 N.W.2d at 666 (“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. ” ). Thus, the state satisfied its burden for an admissible breath test. It then became appellant’s burden to suggest a reason the test was untrustworthy. See Ahrens , 396 N.W.2d at 655

- 56.8

At trial, the only evidenc e relevant to the inaccuracy or unreliability of the
DataMaster DMT

- G was the testimony of the deputy and a copy of the P owerPoint presentation he had seen during the transition training from the Intoxilyzer 5000 to the
DataMaster DMT

- G. Although the deputy was trained and certified to operate the
DataMaster DMT

- G breath test , he was clearly not an expert in ho w the machine worked. In response to questioning regarding the infrared analysis performed by the DataMaster
DMT

- G , the deputy testified, “I’m an operator. That [question regarding infrared analysis] is way more technological tha[n] what I’m willing to testify to.” Later, the deputy again requested appellant’s counsel to “ask a technician” because he was merely an operator and did not feel qual ified to discuss the i mportance of utilizing the fuel

- cell option. While the deputy stated on cross

- examination that , if the machine is operating correctly , both the infrared and fuel cell must be operating, he also stated “[the lack of a fuel cell result ] doesn’t mean the machine wasn’t reading correctly.” The district court rejected, as lay opinion, the deputy’s testimony , which suggested that the DataMaster DMT

- G operating without the fuel

- cell option was not reliable and trustworthy. We conclude that the district court acted within its discretion in doing so. Nevertheless, i n all future implied

- consent hearings where the foundation for results for the DataMaster DMT

- G is at issue, it would be the better practice for the commissioner
to call a witne ss who is more fully prepared and qualified to explain the operation of the machine.
Because the district court acted within its discretion in rejecting a ppellant ’s attempt to discredit the trustworthiness and reliability of the DataMaster DMT

- G operating without9

the fuel

- cell option , w e conclude that the district court did not err in admitting the breath test results from the DataMaster DMT

- G breath test. Affirmed.