Opinion
Nos. CX-98-834, C8-98-1030.
Filed November 24, 1998.
Appeal from the District Court, Goodhue County, C9-97-1615, District Court, Washington County, C9-98-1394.
Samuel A. McCloud, Kelly Vince Griffitts, (for appellants).
Hubert Humphrey III, Attorney General, Joel A. Watne, Assistant Attorney General, (for respondents).
Considered and decided by Klaphake, Presiding Judge, Davies, Judge, and Amundson, Judge.
This opinion will be unpublished and may not be cited except as provided by Minn. Stat. § 480A.08, subd. 3 (1996).
UNPUBLISHED OPINION
Appellants claim their due process rights were violated by officer discretion in administering an Intoxilyzer test because appellants were required to continue blowing in the Intoxilyzer machine after an adequate sample was indicated. We affirm.
FACTS
Two separate appellants, Blakstad and Murphy, brought this consolidated appeal. Each appellant submitted to an Intoxilyzer test, which disclosed alcohol concentration levels above .10. Both appellants argue current Intoxilyzer test procedures violate their due process rights. Appellants claim that the police officer administering the test has discretion to require a person to continue blowing into the machine after an adequate sample has been obtained and is indicated, and that this requirement to continue producing additional breath for analysis significantly increases the machine's alcohol content reading.
DECISION
Appellants argue that when the Intoxilyzer machine has received an adequate sample, a zero appears to the left of the decimal point on the machine's display screen. Appellants also assert that if a person continues to blow into the machine after the zero appears, the measured alcohol concentration will continue to rise. They argue that officers should not have discretion to require a driver to continue to produce breath for analysis after the zero appears, indicating that an adequate sample has been collected. Appellants note that in both cases the officers did not know what the Intoxilyzer reading was when the zero appeared to the left of the decimal point.
Constitutional and statutory arguments identical to those raised here by appellants were addressed and rejected by this court in Brooks v. Commissioner of Pub. Safety , 584 N.W.2d 15 (Minn.App. 1998) (finding appellants constitutional due process arguments and challenges to the Intoxilyzer test unpersuasive), pet. for review filed (Oct. 26, 1998). Brooks relied on Weierke v. Commissioner of Pub. Safety , 578 N.W.2d 815 (Minn.App. 1998), to reject the argument that the measured breath sample exceeded the adequate sample required to accurately measure alcohol content. Brooks , 584 N.W.2d at 17. In Weierke , appellant argued that the evidence used against him was unlawful because the breath sample used to establish his alcohol concentration exceeded the amount of breath the Intoxilyzer test indicated was adequate. 578 N.W.2d at 815. The Weierke decision referred to the statutory requirement that two adequate breath samples must be provided and cited the Minnesota rule explaining that an adequate sample is any sample that is not deemed deficient by the measuring instrument. Minn. R. 7502.0430, subpt. 2 (1997); Weierke , 578 N.W.2d at 816.
Additionally, the Weierke court concluded that the appellant "failed to show either that this application of statutory law prejudiced his interest or that the legislature intended a different result." 578 N.W.2d at 816. This court further noted:
More specifically, appellant has not shown that a quantity of breath greater than the minimum adequate sample produces a higher alcohol concentration result or that it inaccurately reflects the actual alcohol concentration in the body.
Id. (footnote omitted).
Appellants have not demonstrated that the accuracy of the test was affected by their continued blowing into the Intoxilyzer after a zero was displayed on the machine's monitor. Even if the alcohol concentration does rise as the driver continues to blow past the point of a minimum adequate sample, appellants did not prove that an inaccurate measurement results; that is, a measure above the driver's actual alcohol concentration. Thus, the district court did not err in determining that the Intoxilyzer produced an accurate measurement of appellants' alcohol concentration.
The constitutional due process arguments challenge the fairness of a breath test that is not uniformly measured at the time the zero registers on the testing machine. Appellants argue that because every driver is tested by a different officer and each officer requires drivers to produce differing amounts of breath to be measured by the Intoxilyzer, no "fair" or standard measure is being made. The interpretation and constitutionality of statutes are questions of law, which this court reviews de novo. Moe v. Commissioner of Pub. Safety , 574 N.W.2d 96, 98 (Minn.App. 1998) review denied , (Minn. April 14, 1998). The due process arguments raised here are identical to the due process arguments raised and rejected in Brooks . 584 N.W.2d at 18-20. Appellants do not prevail.