                            This opinion will be unpublished and
                            may not be cited except as provided by
                            Minn. Stat. § 480A.08, subd. 3 (2014).

                                 STATE OF MINNESOTA
                                 IN COURT OF APPEALS
                                       A16-0546

                                Brian Albert Patten, petitioner,
                                         Appellant,

                                              vs.

                               Commissioner of Public Safety,
                                      Respondent.

                                  Filed December 19, 2016
                                          Affirmed
                                       Stauber, Judge

                                Dakota County District Court
                                 File No. 19AV-CV-151560

Jeffrey S. Sheridan, Sheridan & Dulas, P.A., Eagan, Minnesota (for appellant)

Lori Swanson, Attorney General, Dominic J. Haik, Assistant Attorney General, St. Paul,
Minnesota (for respondent)

         Considered and decided by Worke, Presiding Judge; Stauber, Judge; and Bratvold,

Judge.

                           UNPUBLISHED OPINION

STAUBER, Judge

         On appeal from the district court’s order sustaining the revocation of his driving

privileges for failing a breath test, appellant argues that the district court erred by refusing

to suppress evidence of the test because appellant’s substantive due-process rights were

violated when appellant was required to provide a sample greater than that required by
law and that additional breath volume increased his alcohol concentration to above the

legal limit. We affirm.

                                           FACTS

       In May 2015, appellant Brian Patten was arrested on suspicion of driving while

intoxicated (DWI). After being read the implied-consent advisory, appellant agreed to take

a breath test, which indicated an alcohol concentration of 0.08. Based on that result,

respondent Commissioner of Public Safety revoked appellant’s driving privileges.

       Appellant sought judicial review of the revocation of his driving privileges, arguing

inter alia that the results of his breath test should be suppressed because his “due process

rights were violated when the officer in control of administering the breath test made

[appellant] provide a sample greater than was required by law when the additional breath

volume pushed [appellant’s] alcohol concentration above 0.08.” At the implied-consent

hearing, Officer Pete Meuwissen testified that he administered the breath test to appellant

and that he is certified operator of the DataMaster DMT-G with fuel-cell option

(DataMaster) breath-test machine. Officer Meuwissen explained that once a breath

sample has begun, the DataMaster emits a solid tone while a subject is providing a breath

sample. According to Officer Meuwissen, the solid tone emitted by the DataMaster stops

when all of the machine’s criteria have been satisfied and the DataMaster has accepted

the subject’s breath sample. Officer Meuwissen further explained that the following

criteria must be satisfied in order for a breath test to be accepted by the DataMaster:

(1) the subject must blow at a rate of at least three liters per minute; (2) the subject must

provide 1.5 liters of air; and (3) the slope of the sample must level out; once the subject’s


                                               2
blow-rate dips below three liters per minute, the test ends. Officer Meuwissen testified

that if any of these criteria have not been satisfied, the DataMaster will not accept the

breath sample.

       Prior to administering appellant’s breath test, the DataMaster performed diagnostic

“self checks,” and all tests were within acceptable ranges. According to Officer

Meuwissen, he also told appellant that he would give him instructions as appellant was

providing a sample, and that if appellant tried to manipulate the test, he would consider it

a test refusal. Officer Meuwissen testified that once appellant started the test, he stood

next to appellant and instructed him to “keep blowing, keep blowing, keep blowing.”

Officer Meuwissen stated that he continued these instructions throughout the test and that

he stopped his instructions when the solid tone stopped. Officer Meuwissen further

testified that appellant provided two samples, with the first sample registering a 0.091

alcohol concentration and the second sample registering a 0.087. The DataMaster then

“takes off the third or the hundredth number” and “takes the smallest of the two

samples.”

       On cross-examination, Officer Meuwissen admitted that a screen on the

DataMaster depicted appellant’s breath sample profile while the test was being

administered. Officer Meuwissen also admitted that throughout the test, appellant’s

breath volume and alcohol concentration were visible on this screen. Although Officer

Meuwissen admitted that he instructed appellant to continue blowing for about 20

seconds, the graphs depicted on the DataMaster showed that appellant had met the

minimum volume requirement for a valid breath test within five seconds, and that “at the


                                              3
[five] second mark, [appellant] was . . . well below a 0.08.” But Officer Meuwissen

stated that if he had told appellant “to stop blowing while the tone was solid,” the

DataMaster would have rejected the test result as “invalid.” And Officer Meuwissen

testified that he was not watching the screen on the DataMaster while the test was in

progress, nor was he calculating appellant’s breath-volume per second while the test was

being administered.

       The district court found that appellant “essentially argues that the officer should be

able to do the math for the machine and tell [appellant] to stop blowing when the officer

believes the machine’s requirements are met.” But the district court found that to “adopt

[appellant’s] argument would allow for an even greater chance of manipulation and

unnecessarily places a burden on the officer to determine if certain criteria have been met

when the machine can do it.” The district court concluded that appellant “failed to

provide any evidence beyond speculation to impeach the test result.” Thus, the district

court sustained the revocation of appellant's driver’s license because appellant “failed to

establish that the test results were inaccurate or that his due process rights were violated

when the officer relied upon the machine to tell [appellant] when to stop providing a

sample.” This appeal followed.

                                      DECISION

       This court reviews the district court’s findings supporting an order sustaining a

license revocation for clear error. Jasper v. Comm’r of Pub. Safety, 642 N.W.2d 435, 440

(Minn. 2002). “Findings of fact are clearly erroneous if, on the entire evidence, [the

reviewing court is] left with the definite and firm conviction that a mistake occurred.”


                                              4
State v. Diede, 795 N.W.2d 836, 846-47 (Minn. 2011). But questions of law in implied-

consent proceedings are reviewed de novo. Harrison v. Comm’r of Pub. Safety, 781

N.W.2d 918, 920 (Minn. App. 2010).

       The doctrine of substantive due process is based on the Due Process Clause of the

Fourteenth Amendment to the United States Constitution. See U.S. Const. amend. XIV,

§ 1. “Fundamental fairness is the quintessence of the due process clause.” Brooks v.

Comm’r of Pub. Safety, 584 N.W.2d 15, 18 (Minn. App. 1998) (quotation omitted),

review denied (Minn. Nov. 24, 1998). It is the appellant’s burden to show that the

manner in which the DataMaster was administered was unfair. Id. at 19.

       Appellant argues that his substantive due-process rights were violated when

Officer Meuwissen “not only permitted, but ordered [appellant] to continue to blow well

past what he could see was an adequate breath sample, and that additional breath pushed

[his] alcohol concentration above 0.08.” But this argument was rejected by this court

almost 20 years ago. In Brooks, the drivers argued that their due-process rights were

violated because the method of testing allowed suspected intoxicated drivers to be treated

differently from each other—an officer administering the test might stop some subjects at

the moment an adequate breath sample was obtained while requiring other subjects to

continue blowing past that point. 584 N.W.2d at 19-20. This court held that the drivers

failed to prove that the officers manipulated the tests. Id. at 20. The court held that there

were no substantive or procedural due-process violations because the drivers “failed to

show a direct and personal harm resulting from the alleged denial of constitutional

rights.” Id. at 19 (citation omitted).


                                              5
       Similarly, in State v. Rader, the defendant argued that the state violated his

substantive and procedural due-process rights by requiring him to continue to blow into

the intoxilyzer after the machine registered an adequate breath sample. 597 N.W.2d 321,

323 (Minn. App. 1999). Noting that this argument was “specifically rejected in Brooks,”

this court stated that the defendant “presented no evidence that the officer manipulated

the test or that he purposefully treated [the defendant] differently than he treated others.”

Id. at 324. Thus, the court held that because the defendant failed to show any intended,

direct, and personal harm from the alleged denial of his constitutional rights, neither his

substantive nor procedural due-process rights were violated by the testing method used

by the police officer. Id.

       Appellant argues that Brooks and Radar are distinguishable because the testing

machine in those cases was the Intoxilyzer 5000, but “Minnesota now uses a DataMaster

breath testing machine.” Appellant claims that the difference between machines is

significant because, unlike the Intoxilyzer 5000, the DataMaster “allows the officer to

watch in real time as a breath sample is introduced into the machine and see how much

alcohol is in the sample.” Appellant contends that because the officer was using the

DataMaster, he “could see as [appellant’s] alcohol concentration climbed toward the

‘magic number’ that would be the difference between a crime and not a crime,” and that

“[i]n the face of that information coming to him in real time, the officer had the choice of

telling [appellant] when he had complied with the legal requirement and could stop

blowing, or telling him to keep blowing well beyond that point.” Thus, appellant argues

that unlike in Brooks and Rader, Officer Meuwissen provided the court with evidence


                                              6
that he “can and did manipulate the test by having [appellant] provide more than four

times the required breath volume, and evidence that the manipulation actually made a

difference in the outcome of the test where it is clear that [appellant’s] level didn’t cross

the legal limit until late in the test.”

       We disagree. In Rader, this court stated that, consistent with Brooks, the “state is

not required to prove that a defendant’s alcohol concentration is indicated to be 0.10 or

more at the precise moment the machine registers an adequate sample, the state is only

required to show that the directions of the legislature are followed.” 597 N.W.2d at 324.

The legislature has directed that when a breath test is administered with a DataMaster

breath-testing instrument, “the test must consist of analyses in the following sequence:

one adequate breath-sample analysis, one control analysis, and a second, adequate breath

sample analysis.” Minn. Stat. § 169A.051, subd. 5(a) (2014); see also Minn. R.

7502.0425, subp. 2 (2015) (stating that the DataMaster DMT-G with fuel-cell option is

approved by the commissioner for the purpose of determining the alcohol concentration

of a breath sample). The legislature has also directed that a test sample is deemed

“adequate if the instrument analyzes the sample and does not indicate the sample is

deficient.” Minn. Stat. § 169A.051, subd. 5(b) (2014). If these procedures are followed,

the test result is deemed proper and reliable. Brooks, 584 N.W.2d at 17-18.

       Here, the record reflects that the directives set forth by the legislature in Minn.

Stat. § 169A.051, subd. 5, were followed. Because the state made a prima facia showing

of the test’s reliability, the burden shifted to appellant to introduce evidence of the test’s

unreliability. See Rader, 597 N.W.2d at 324. We acknowledge that there may be some


                                               7
merit to appellant’s claim that an increase in breath volume could cause the alcohol

concentration to increase. But, as the district court found, appellant failed to provide any

scientific evidence beyond speculation that a quantity of breath volume greater than the

minimum adequate sample inaccurately reflects the actual alcohol concentration in the

subject’s body. Moreover, although Officer Meuwissen admitted that appellant’s breath

volume and alcohol concentration were visible on the DataMaster screen, he also testified

that he was not watching the screen while the test was in progress, nor was he calculating

appellant’s breath volume per second while the test was being administered. Instead,

Officer Meuwissen testified that he performed the breath tests consistent with his

training, that the DataMaster informs the driver when to blow and when to stop blowing,

and that if the test is not performed consistent with the specifications of the DataMaster,

the machine gives “an invalid result.” Appellant provided no evidence that the manner in

which the test was administered to him was manipulated or any different than the manner

in which the test was administered to others. Therefore, appellant has failed to establish

that his substantive due-process rights were violated.

       Affirmed.




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