Berge v. Commissioner of Public Safety

SEDGWICK, Judge

(Dissenting)

I respectfully dissent.

I.

In ruling the stop improper, the trial court specifically referred to the officer's lack of “probable cause to stop.” As we stated in State v. Wellman, 355 N.W.2d 331 (Minn.Ct.App.1984), in determining the validity of an automobile stop, the test is reasonable suspicion, not probable cause. The officer “must be able to point to specific and articulable facts which, together with the reasonable inferences from those facts, reasonably warrant the invasion of a citizen’s personal security. The intrusion cannot be based on an inarticulate hunch, and must be reasonable in light of the particular circumstances.” Id. at 333 (quoting State v. Engholm, 290 N.W.2d 780, 783 (Minn.1980)). See Terry v. Ohio, 392 U.S. 1, 21, 88 S.Ct. 1868, 1879, 20 L.Ed.2d 889 (1968); Marben v. State, 294 N.W.2d 697, 699 (Minn.1980); O’Neill v. Commissioner of Public Safety, 361 N.W.2d 471 (Minn.Ct.App.1985). In State v. Lahr, 368 N.W.2d 6 (Minn.Ct.App.1985), this court reversed the trial court for applying the probable cause standard to determine the validity of an automobile stop.

Here, the officer observed respondent’s vehicle enter the intersection at a speed of 20 to 25 miles per hour. He knew when he first saw the vehicle that it was only about 20 feet from the stop sign, although the sign itself was obstructed from the officer’s view. Based on the speed of the vehicle, its distance from the sign, and the officer’s training and 14 years experience it was reasonable for the officer to suspect that respondent did not stop at the stop sign. As such the officer was justified in stopping the vehicle.

II.

In concluding that the officer lacked probable cause to believe Berge was under the influence, the trial court stated “the usual indications of being under the influence were extremely, extremely close in this case and not very strong from my hearing the testimony.” Minn.Stat. §§ 169.121 and 169.123, the D.W.I. and implied consent laws, are remedial and must *79be liberally construed in favor of the protection of the public. State, Dept. of Public Safety v. Juncewski, 308 N.W.2d 316 (Minn.1981).

In reversing a trial court’s determination that the officer lacked probable cause to believe a driver was under the influence, we recently stated:

Probable cause exists where all the facts and circumstances would warrant a cautious person to believe that the suspect was driving or operating a vehicle while under the influence. State v. Harris, 295 Minn. 38, 42, 202 N.W.2d 878, 881 (1972); State v. Olson, 342 N.W.2d 638, 640 (Minn.Ct.App.1984). Probable cause is evaluated from the point of view of a “prudent and cautious police officer on the scene at the time of the arrest.” State v. Harris, 265 Minn. 260, 264, 121 N.W.2d 327, 331, cert. denied, 375 U.S. 867 [84 S.Ct. 141, 11 L.Ed.2d 94] (1963); see Vertina v. Commissioner of Public Safety, 356 N.W.2d 412, 413 (Minn.Ct.App.1984). In reviewing an officer’s actions, the trial court should “consider the totality of the circumstances and should remember that trained law enforcement officers are permitted to make inferences' and deductions that might well elude an untrained person.” State v. Kvam, 336 N.W.2d 525, 528 (Minn.1983) (quotations omitted). Great deference should be paid to the officer’s experience and judgment. Vertina, 356 N.W.2d at 414; Olson, 342 N.W.2d at 641. A determination of probable cause is a mixed question of fact and of law. Clow v. Commissioner of Public Safety, 362 N.W.2d 360, 363 (Minn.Ct.App.1985). “Once the facts have been found the court must apply the law to determine if probable cause exists.” Id.

Johnson v. Commissioner of Public Safety, 366 N.W.2d 347, 350 (Minn.Ct.App.1985).

Here, the officer detected a strong odor of alcohol on respondent’s breath, watery and slightly bloodshot eyes, slightly slurred speech. Field sobriety tests showed respondent was unable to perform the heel-to-toe test and was only able to complete the stand-on-one-foot-and-count-to-ten test on the third attempt after two unsuccessful tries. Respondent did successfully complete the finger to nose test. A preliminary breath test registered a “fail.” Given these circumstances, the officer had probable cause to believe respondent was under the influence and was justified in arresting respondent for D.W.I. and invoking the implied consent law.

III.

The trial court also found the test results of the intoxilyzer machine invalid and unreliable. The record shows that on a first administration of the test respondent did not provide an adequate breath sample and the intoxilyzer machine indicated that the first subject test was a “deficient sample.” The test operator performed a calibration standard test and began a new test. During this time respondent was under observation for 15 to 20 minutes and did not put anything in his mouth. Before testing, the intoxilyzer‘machine ran a series of internal diagnostic checks, showing it was functioning properly. The machine then performed four room air blank tests, showing the level of contaminants in the room at .000.

Respondent then blew into the machine. Results showed that the alcohol concentration was .112, with a replicate test (i.e., a second measure of the breath sample) of .117. The intoxilyzer machine then ran a calibration standard test on a known simulator solution of .11 alcohol concentration, and the instrument test showed results of .115 and a replicate test of .117. The intoxilyzer operator testified these readings were acceptable within B.C.A. tolerances. Respondent then blew into the in-toxilyzer machine a second time, and the test results were .109 with a replicate test of .110. The intoxilyzer reported the final value by taking the lowest of the four subject readings (.109) and dropping the final decimal point, resulting in .10.

The record shows the intoxilyzer operator followed all the procedures for a valid *80test. In addition, he testified he believed the instrument was in proper working order. Minn.Stat. § 169.123, subd. 2(a) (1984), provides that in tests using the in-toxilyzer machine, the test consists of “one adequate breath sample analysis, one calibration standard analysis, and a second, adequate breath sample analysis.” This was done here. The intoxilyzer analyzed the sample and did not indicate the sample was deficient. Minn.Stat. § 169.123, subd. 2(b) (1984). A prima facie showing that the test was trustworthy was established by the Commissioner. State v. Dille, 258 N.W.2d 565, 568 (Minn.1977); Noren v. Commissioner of Public Safety, 363 N.W.2d 315 (Minn.Ct.App.1985); Kooi v. Commissioner of Public Safety, 363 N.W.2d 487 (Minn.Ct.App.1985). Respondent did not challenge the validity of the second test results.

Apparently the trial court considered the test results of the first aborted test, although an inadequate breath sample was provided for that one and the test was deficient. The outcome of the first invalid test is irrelevant on whether the subsequent test was valid.

The trial court characterized the second test sample results as “different” with “variances.” The two adequate breath samples supplied by respondent, each measured twice, showed readings of .109, .110, .112 and .117. The correlation percent between these readings was 96 percent, and was within established B.C.A. tolerances. The trial court erred in ruling that the test results were unreliable simply because the sample readings differed by a few thousands of a percent. The evidence shows the intoxilyzer test was administered to respondent properly and produced valid results.

The trial court erred in ruling that respondent was the subject of an invalid stop, was arrested for D.W.I. based on lack of probable cause and was the subject of an unreliable intoxilyzer test. I would reverse and remand for trial.