Opinion
No. C3-02-437.
Filed August 20, 2002.
Appeal from the District Court, Dakota County, File No. C80115577.
Dennis B. Johnson, (for appellant); and Mike Hatch, Attorney General, Sean R. McCarthy, Assistant Attorney General, (for respondent)
Considered and decided by Toussaint, Chief Judge, Randall, Judge, and Harten, Judge.
This opinion will be unpublished and may not be cited except as provided by Minn. Stat. § 480A.08, subd. 3 (2000).
UNPUBLISHED OPINION
Appellant challenges the district court's affirmance of the Commissioner of Public Safety's decision to cancel appellant's driver's license. Appellant argues that the district court erred by finding that the results of the preliminary breath tests were reliable and that appellant had consumed alcohol. We affirm.
FACTS
An officer with the Eagan Police Department stopped appellant at around 9:30 p.m. on May 18, 2001, because he noticed that the truck appellant was driving had a missing taillight. The officer believed that appellant had been leaving the parking lot of a local bar when the officer first saw appellant's truck. When the officer approached the truck and began speaking with appellant, he noticed a smell of alcohol on appellant's breath. When the officer asked appellant if he had been drinking, appellant responded that he had not. The officer ran a check on appellant's driver's license and discovered that appellant had a "B-card" restriction on his license, which was the result of a two previous DWI convictions, prohibiting the consumption of any alcohol. See State v. Tofte, 563 N.W.2d 322, 324 (Minn.App. 1997) (explaining "B-card" restriction as conditioning driving privilege on total abstinence from drugs and alcohol).
Because appellant had the B-card restriction on his driver's license, the officer administered a preliminary breath test (PBT). Appellant registered a .077 on the PBT. The officer heard appellant make a comment to the effect that he had messed up, which the officer interpreted to mean that appellant was admitting that he had consumed alcohol before driving his truck.
The officer notified the Commissioner of Public Safety about the result of appellant's PBT, and the Commissioner cancelled appellant's driver's license.
Appellant filed a petition for reinstatement with the district court, and the district court held a hearing on appellant's petition. Appellant presented the testimony of an expert in breath testing and forensic science. The expert testified that appellant had consumed NyQuil, which has a ten-percent alcohol concentration, and gargled with Listerine, which has a 26.9 percent alcohol concentration, immediately before leaving work that evening and that the PBT result was likely the product of "mouth alcohol" and not the product of appellant consuming alcoholic beverages. The expert also called into question the accuracy of the PBT because the officer had testified that he had no proof about when the PBT's calibration had last been tested. However, on cross-examination, appellant's expert acknowledged that the PBT used in this case had a self-calibration system that calibrates every time the machine is turned on and a mouthpiece is inserted.
The district court sustained the commissioner's revocation of appellant's driver's license, noting that the officer smelled alcohol on appellant and that appellant had given an incriminating statement that he had "messed up." The district court found that appellant had failed to demonstrate that the PBT was faulty or that it recorded only mouth alcohol and concluded that appellant had consumed alcohol on May 18, 2001. The court held that the commissioner had carried its burden of demonstrating that it had good cause to believe that appellant had consumed alcoholic beverages. This appeal followed.
DECISION
The Commissioner of Public Safety has the authority to cancel a person's driving privileges if the commissioner has good cause to believe it would be inimical to public safety or welfare for the person to continue driving. Thorson v. Comm'r of Pub. Safety, 519 N.W.2d 490, 493 (Minn.App. 1994). We give a presumption of regularity and correctness to decisions concerning license matters. Id. We will reverse a license cancellation only if we find that the cancellation is unsupported by substantial evidence or is arbitrary and capricious. Id.
To support the cancellation of a license at a reinstatement hearing, the commissioner must demonstrate that he acted with "good cause" to believe that the driver violated the B-card restriction. Plaster v. Comm'r of Pub. Safety, 490 N.W.2d 904, 906 (Minn.App. 1992). The driver challenging a license cancellation must demonstrate that the commissioner acted unreasonably. Thorson, 519 N.W.2d at 493.
On appeal, appellant challenges two findings of the district court: (1) that the PBT was reliable and (2) that appellant had consumed alcohol. Appellant argues that the PBT was unreliable because there were no records to demonstrate that it had been calibrated recently and because it was likely picking up "mouth alcohol" from the NyQuil he had recently ingested and the Listerine he had recently gargled.
At the onset, we understand appellant's issue regarding the lack of evidence about recent calibration of the PBT. The officer did admit that he had not recently calibrated the PBT, but he also testified that he had used this particular PBT many times in the past and that nothing led him to believe that the PBT was not working properly on the night he stopped appellant. Appellant's expert also testified that the PBT used in this case had a self-calibration system that internally checked the PBT every time it was turned on and a mouthpiece was inserted. We conclude that it was within the district court's discretion to accept the state's argument that the PBT was functioning properly and to reject appellant's argument that a lack of proof of recent calibration necessarily means the PBT was faulty. The district court weighed the credibility of the officer and the expert and accepted the officer's assertion that the PBT functioned properly. See Minn.R.Civ.P. 52.01 (noting that appellate court gives due regard to district court's assessment of witness credibility). We cannot say that this weight was in error.
Appellant also argues that the PBT recorded only mouth alcohol, and as such, the district court's finding that he had consumed alcohol was error. We have visited this argument on appeal before. See Thomson v. Comm'r of Pub. Safety, No. C8-01-125, 2002 WL 880199 (Minn.App. May 7, 2002) (upholding cancellation of appellant's B-card restricted driver's license where appellant admitted to consuming a bottle of NyQuil over the course of a day). Here, appellant conceded that he had consumed NyQuil and that NyQuil has a ten-percent alcohol concentration. The rule prohibiting the consumption of alcohol by a person with a B-card restriction does not limit the prohibition to the more common types of consumed alcohol — namely beer, wine, and hard liquor. Minn. R. 7503.1300, subp. 3; s ee Plaster, 490 N.W.2d at 907 (noting that an intoxicating liquor is "any liquid which, when taken into the body, will intoxicate," including cough syrup). When the language of a rule is clear and unambiguous, we are unwilling and unable to deviate from it. Minn. Stat. § 645.16 (2000).
Appellant agrees that he consumed NyQuil, a liquid with a ten-percent alcohol concentration. A ten-percent alcohol concentration is approximately 20 proof, stronger than beer, and comparable to the strength of alcohol in table wine. Appellant's admission is supported by the officer's testimony that appellant's breath smelled of alcohol. The totality of the record supports the district court's conclusion that appellant had consumed alcohol in violation of his B-card restriction. The commissioner had good cause to cancel appellant's license.