                           This opinion will be unpublished and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
                                      A15-0195

                              Randy Lee Torgeson, petitioner,
                                       Appellant,

                                             vs

                              Commissioner of Public Safety,
                                     Respondent.

                                  Filed January 25, 2016
                                         Affirmed
                                     Connolly, Judge

                              Goodhue County District Court
                                File No. 25-CV-14-2358


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

Lori Swanson, Attorney General, William J. Young, Joan M. Eichhorst, Assistant
Attorneys General, St. Paul, Minnesota (for respondent)



         Considered and decided by Cleary, Chief Judge; Connolly, Judge; and Johnson,

Judge.

                          UNPUBLISHED OPINION

CONNOLLY, Judge

         Appellant challenges an order sustaining his driver’s license revocation and plate

impoundment, arguing that field sobriety tests are Fourth Amendment searches and
because the commissioner failed to get a warrant or prove a valid exception to the warrant

requirement, the evidence obtained from the field sobriety tests is inadmissible, and that

the district court erred in admitting the DataMaster test results when the commissioner did

not establish foundation for the test because procedures necessary to ensure an accurate

and reliable test were not followed.1

       Because we find that field sobriety tests are Fourth Amendment searches that

require only reasonable suspicion and because we find that the district court did not err in

admitting the DataMaster test results, we affirm.

                                         FACTS

       On September 27, 2014 appellant Randy Lee Torgeson’s vehicle was reported

crossing the fog line and center line and hitting the median. Upon arriving at appellant’s

home, a police officer observed appellant unloading a crock pot from the trunk of the

vehicle. The officer, approached appellant who informed the officer that he had just arrived

at home and had been driving. The officer observed that appellant’s speech was slurred

and that his eyes were red and watery. Appellant admitted drinking apple wine earlier in

the day. The officer then had appellant perform field sobriety tests, which revealed several



1
  Appellant also argues that the DataMaster evidence is inadmissible because it was
obtained from appellant in violation of his Fourth Amendment rights and without a warrant
or an exception to the warrant requirement and that the breath test result should have been
suppressed because the criminal test refusal statute is unconstitutional and therefore the
implied-consent advisory read to appellant violated his conditional right to due process and
the doctrine of unconstitutional conditions. Appellant recognizes that State v. Bernard,
859 N.W.2d 762 (Minn. 2015), cert. granted, 83 U.S.L.W. 3916 (U.S. Dec. 11, 2015) (No.
14-1470) precludes these arguments and raises the issues only to preserve them pending
the Supreme Court’s review of Bernard.

                                             2
indicia of intoxication. The officer then performed a preliminary breath test (PBT), which

measured appellant’s alcohol concentration at 0.115. The officer arrested appellant for

suspicion of DWI and transported him to the Public Safety Building.

       There, the officer read appellant the Minnesota Implied-Consent Advisory, recorded

appellant’s responses on the form, gave appellant an opportunity to consult with counsel,

and asked if appellant would take a breath test. Appellant agreed and a breath sample was

taken by an officer who was a certified operator of the DataMaster DMT-G with fuel-cell

option machine (DataMaster DMT-G). The DataMaster DMT-G worked properly and

indicated no errors in the sampling process. Appellant’s BAC was measured at 0.13. The

fuel-cell option on the machine used by the officer had been disabled by the Bureau of

Criminal Apprehension (BCA), and the police did not have a warrant to conduct the field

sobriety tests, the PBT, or the DataMaster DMT-G.

                                      DECISION

I.     Did the district court err by admitting the results of the field sobriety tests?

       Appellant argues for suppression of the results of the field sobriety tests on the

ground that field sobriety tests are searches that must be supported by probable cause and

a warrant. This court reviews questions of law de novo. In re Collier, 726 N.W.2d 799,

803 (Minn. 2007).

       Under current Minnesota law, field sobriety tests need be supported only by

reasonable, articulable suspicion that the driver is impaired. See State, Dep’t. of Pub. Safety

v. Juncewski, 308 N.W.2d 316, 321 (Minn. 1981) (holding that an officer appropriately

administered field sobriety tests and a preliminary breath test because the officer had


                                              3
reasonable, articulable suspicion that the person had been driving while impaired); State v.

Klamar, 823 N.W.2d 687, 696 (Minn. App. 2012) (determining that an officer’s

observation of two indicia of intoxication constituted reasonable, articulable suspicion to

justify field sobriety tests and preliminary breath testing). Appellant argues that following

Missouri v. McNeely, 133 S. Ct. 1552 (2013) Minnesota law regarding the admissibility of

field sobriety tests is now unconstitutional. We disagree.

       McNeely dealt specifically with the application of the exigent-circumstances

exception to a warrantless blood test. A blood test, “which involve[s] a compelled physical

intrusion beneath [a suspect’s] skin and into his veins,” is subject to the Fourth Amendment

warrant requirement. McNeely, 133 S. Ct. at 1558 (stating that the warrant requirement

“applies to the type of search at issue in this case, which involved a compelled physical

intrusion beneath McNeely’s skin and into his veins . . . .”); see also State v. Trahan, 870

N.W.2d 396, 401 (Minn. App. 2015) (“A blood draw is undeniably intrusive . . . .”), review

granted (Minn. Nov. 25, 2015). Although McNeely and Trahan clarified that probable

cause is required by the Fourth Amendment as applied to blood tests, those cases do not

address whether field sobriety tests are subject to the warrant requirement. Because we do

not believe that McNeely rendered the law regarding the admissibility of field sobriety tests

to be unconstitutional, we adhere to binding Minnesota precedent that requires only

reasonable suspicion of drunk driving to administer field sobriety tests.

       Appellant does not argue that the officer did not have reasonable, articulable

suspicion that appellant had been driving while impaired at the time the officer asked

appellant to perform field sobriety tests. Because the officer in this case had a reasonable,


                                             4
articulable suspicion, a warrant was not required and the district court did not err by

admitting appellant’s field sobriety test results.

II.      Did the district court err by admitting the breath test result where the
         commissioner failed to establish foundation for the test’s scientific reliability?

         Appellant argues that the district court erred in admitting the result of the

DataMaster DMT-G test because, with the fuel cell disabled, the scientific procedures

necessary to ensure an accurate and reliable alcohol concentration test were not performed

when appellant was tested. “Evidentiary rulings rest within the sound discretion of the

[district] court and will not be reversed absent a clear abuse of discretion. On appeal, the

appellant has the burden of establishing that the [district] court abused its discretion and

that appellant was thereby prejudiced.” State v. Amos, 658 N.W.2d 201, 203 (Minn. 2003)

(citation omitted). “A breathalyzer test reading conducted by a certified operator may be

admitted into evidence if it is established that the machine was in proper working order and

the chemicals in proper condition.” Bielejeski v. Comm’r of Pub. Safety, 351 N.W.2d 664,

666 (Minn. App. 1984). “Once a prima facie showing of trustworthy administration has

occurred, it is incumbent on the opponent to suggest a reason why the test was

untrustworthy.” Ahrens v. Comm’r of Pub. Safety, 396 N.W.2d 653, 655-56 (Minn. App.

1986).

                      In any civil or criminal hearing or trial, the results of a
               breath test, when performed by a person who has been fully
               trained in the use of an infrared or other approved breath-
               testing instrument . . . are admissible in evidence without
               antecedent expert testimony that the infrared or other approved
               breath-testing instrument provides a trustworthy and reliable
               measure of the alcohol in the breath.



                                               5
Minn. Stat. § 634.16 (2014). Minn. Stat. § 169A.03, subd. 11 (2014) defines “[i]nfrared

or other approved breath-testing instrument” as “a breath-testing instrument that employs

infrared or other technology and has been approved by the commissioner of public safety

for determining alcohol concentration.” Minn. R. 7502.0425, subp. 2 (2015) states “the

[DataMaster DMT-G] is approved by the commissioner for the purpose of determining the

alcohol concentration of a breath sample, provided that the sample is analyzed using either

the unit’s infrared technology or the unit’s infrared technology in conjunction with its fuel

cell technology.” (Emphasis added).

       Appellant does not dispute that the officer was fully trained in the use of the

DataMaster DMT-G and used the DataMaster DMT-G in order to test appellant’s breath.

Rather appellant argues that the record in this case establishes that the machine was not in

proper working order. This argument is based on the following cross-examination of the

deputy charged with administering the DataMaster DMT-G test by appellant’s attorney:

              Q.      All right. And, again, whenever it looks at the sample in
              the test chamber, the Data Master, it performs both the fuel cell,
              as well as the infrared analysis, correct?
              A.      If it is working correctly, yes.
              ....
              Q.      And so in order for that scientific safeguard to be
              working properly, again, everything needs to be up and
              running, both the infrared and the fuel cell, correct?
              A.      Correct. And in – in theory, as they built the machine[.]

       Appellant argues that, because the fuel-cell technology installed in the DataMaster

DMT-G was not turned on while the deputy ran appellant’s breath test, the test results are

unreliable and therefore, inadmissible: “[E]vidence shows that with the fuel cell technology




                                              6
disabled . . . the DataMaster can perform only 1/6 of the scientific analysis designed into

the machine.”

       The district court found no evidence that the DataMaster DMT-G results are not

accurate and reliable because the fuel-cell option was disabled and ruled that, rather than

merely point to an alleged defect, appellant must demonstrate that the alleged defect

actually affected the test results. The district court concluded that “[i]t is no more than lay

speculation that the disabling of the fuel cells somehow affected the accuracy or reliability

of test result or made the test result 1/6 a[s] reliable as before.”

       The district court did not clearly abuse its discretion in admitting the test result.

Minn. Stat. § 634.16 states that an approved breath-testing instrument, as defined by Minn.

Stat. § 169A.01, subd. 11, provides a trustworthy and reliable measure of the alcohol in the

breath. Minn. R. 7502.0425, subp. 2, provides that the DataMaster DMT-G with Fuel Cell

Option is an approved instrument for analyzing a breath sample, using either the unit’s

infrared technology, or the infrared technology in conjunction with the fuel-cell

technology. The officer who conducted the test was a certified operator; the machine was

in proper working order as defined by Minn. Stat. § 634.16; and there was no indication

that the chemicals were not in the proper condition. See Bielejeski, 351 N.W.2d at 666 (“A

breathalyzer test reading conducted by a certified operator may be admitted into evidence

if it is established that the machine was in proper working order and the chemicals in proper

condition.”). Thus, the state satisfied its burden for an admissible breath test. It then

became appellant’s burden to suggest a reason the test was untrustworthy. See Ahrens, 396

N.W.2d at 655-56.


                                                7
       At trial, the only evidence relevant to the inaccuracy or unreliability of the

DataMaster DMT-G was the testimony of the deputy and a copy of the PowerPoint

presentation he had seen during the transition training from the Intoxilyzer 5000 to the

DataMaster DMT-G.        Although the deputy was trained and certified to operate the

DataMaster DMT-G breath test, he was clearly not an expert in how the machine worked.

In response to questioning regarding the infrared analysis performed by the DataMaster

DMT-G, the deputy testified, “I’m an operator. That [question regarding infrared analysis]

is way more technological tha[n] what I’m willing to testify to.” Later, the deputy again

requested appellant’s counsel to “ask a technician” because he was merely an operator and

did not feel qualified to discuss the importance of utilizing the fuel-cell option. While the

deputy stated on cross-examination that, if the machine is operating correctly, both the

infrared and fuel cell must be operating, he also stated “[the lack of a fuel cell result]

doesn’t mean the machine wasn’t reading correctly.” The district court rejected, as lay

opinion, the deputy’s testimony, which suggested that the DataMaster DMT-G operating

without the fuel-cell option was not reliable and trustworthy. We conclude that the district

court acted within its discretion in doing so.

       Nevertheless, in all future implied-consent hearings where the foundation for results

for the DataMaster DMT-G is at issue, it would be the better practice for the commissioner

to call a witness who is more fully prepared and qualified to explain the operation of the

machine.

       Because the district court acted within its discretion in rejecting appellant’s attempt

to discredit the trustworthiness and reliability of the DataMaster DMT-G operating without


                                                 8
the fuel-cell option, we conclude that the district court did not err in admitting the breath

test results from the DataMaster DMT-G breath test.

       Affirmed.




                                             9
