Michaelis v. Commissioner of Public Safety

Syllabus by the Court

The failure of the Minnesota Bureau of Criminal Apprehension to recertify a breathalyzer operator after a period of only two years and during a period when the Breathalyzers were being replaced by the Intoxilyzer 5000 does not preclude admission of breathalyzer test results in an implied consent hearing.

OPINION

The Commissioner of Public Safety appeals from an order of the trial court rescinding the revocation of respondent Gerald C. Michaelis' driver's license. The trial court found the commissioner failed to prove that Michaelis' test results accurately revealed an alcohol concentration of .10 or more because the breathalyzer operator had not been properly recertified. We reverse.

FACTS Michaelis was stopped on October 7, 1984, after a Hennepin County Deputy Sheriff observed Michaelis' vehicle weave across the center line of a highway five times. After being placed under arrest for driving while under the influence, Michaelis agreed to take a breathalyzer test, which was administered by the deputy. The test indicated a blood alcohol concentration of .15. Michaelis' driver's license was revoked pursuant to Minn.Stat. § 169.123, subd. 4 (1984). Michaelis petitioned for judicial review claiming the test results were invalid and unreliable and, therefore, inadequate to sustain the revocation of his driver's license. See Minn.Stat. § 169.123, subd. 6(3) (1984).

The trial court rescinded the revocation for the sole reason that the deputy was not a certified breathalyzer operator at the time of testing. The deputy had been certified as a breathalyzer operator in September 1982 for one year but was not required to attend a refresher course to become recertified because of the pending introduction of the new Intoxilyzer 5000. In the spring of 1984, the deputy obtained an Intoxilyzer operator's certificate.

ISSUE Did the Commissioner of Public Safety show that the test results were reliable and trustworthy even though the breathalyzer operator had not been recertified?

ANALYSIS The State, as the proponent of the breathalyzer test, "must establish that the test itself is reliable and that its administration in the particular instance conformed to the procedure necessary to ensure reliability." State v. Dille,258 N.W.2d 565, 567 (Minn. 1977). After a prima facie showing of trustworthy administration, "it is 'incumbent upon defendant to suggest a reason why the * * * test was untrustworthy.' " Tatev. Commissioner of Public Safety, 356 N.W.2d 766, 768 (Minn. Ct. App. 1984) (quoting Dille, 258 N.W.2d at 568).

Minn.Stat. § 169.123, subd. 3 (1984) provides:

The person administering a breath test shall be fully trained in the administration of breath tests pursuant to training given by the commissioner of public safety.

Id.

The BCA's failure to recertify the deputy, alone, is not a sufficient reason in this case to bar the breathalyzer test result. It is not disputed that the deputy was fully trained in 1982 in the administration of breath tests. Any subsequent recertification is at the discretion of the commissioner.

Any person who has satisfactorily completed a course given or approved by the commissioner or his acting agents in the use of an instrument specially manufactured to analyze a specimen of breath to determine the alcohol concentration may administer a breath test at the discretion of a peace officer. After completion of the described course such person may be required to periodically demonstrate, to the commissioner or his duly authorized and acting agents, his competence to satisfactorily operate the instrument.

Minn. Rules 7502.0400 (Supp. 1984) (emphasis added).

The overall aim of the statute and rule for administering breath tests is to ensure that breath test instrument operators are trained to accurately operate the instruments so that evidence of intoxication sufficient to require revocation of drivers' licenses is reliable.

Quimby v. State, Department of Public Safety, 351 N.W.2d 629,631 (Minn. 1984).

There is no requirement that an operator hold an operators certificate at the time of testing. The commissioner is given broad discretion in setting the training standards for breathalyzer operators. See id. The commissioner, through the BCA, chose not to require the deputy to submit to a recertification process because the Breathalyzer was being replaced by the Intoxilyzer 5000 and the deputy was trained and certified on the latter. Only periodic review is necessary. Seeid. (recertification of operator was every one or two years after formal training).

The trial court in rescinding the revocation of Michaelis' driver's license, relied on our decision in Haegele v.Commissioner of Public Safety, 353 N.W.2d 704 (Minn.Ct.App. 1984). In Haegele, we held the use of a test ampoule "that did not meet the minimum standards established by the Bureau of Criminal Apprehension made the breathalyzer test result unreliable." Id. at 705.

Haegele can be distinguished because in the case at hand, there is no argument that the testing procedures weren't properly followed. The deputy testified that the breathalyzer was in proper working order and the chemicals in proper condition. See State, Department of Public Safety v. Habisch,313 N.W.2d 13, 15-16 (Minn. 1981) (noncompliance with BCA recommendation to replace simulator solution every 30 days did not invalidate test results where the machine was in proper working order and the chemicals in proper condition).

This matter can also be distinguished from State, Departmentof Public Highways v. Halvorson, 288 Minn. 424, 181 N.W.2d 473 (1970), relied upon by the dissent, in which the Commissioner had not established that the officer administering the test was qualified to do so. Here, the commissioner had certified the deputy in 1982, and although he hadn't been recertified, we cannot hold he was unqualified to operate a breathalyzer given the commissioner's broad discretion in requiring periodic demonstrations of competence.

Non-certification of the deputy at the time of testing did not render the breathalyzer test result invalid and unreliable.

DECISION Test result indicating an alcohol concentration of .10 was valid and reliable even though the breathalyzer operator had not been recertified at the time of testing.

Reversed.