                           This opinion will be unpublished and
                           may not be cited except as provided by
                           Minn. Stat. § 480A.08, subd. 3 (2012).

                                STATE OF MINNESOTA
                                IN COURT OF APPEALS
                                      A13-1201

                              David Joseph Masters, petitioner,
                                        Appellant,

                                             vs.

                               Commissioner of Public Safety,
                                      Respondent.

                                     Filed July 21, 2014
                                          Affirmed
                                        Reilly, Judge

                              Hennepin County District Court
                                File No. 27-CV-11-20396

Derek A. Patrin, Ethan P. Meaney, Meaney & Patrin, P.A., Maple Grove, Minnesota (for
appellant)

Lori Swanson, Attorney General, James E. Haase, Joan M. Eichhorst, Assistant Attorneys
General, St. Paul, Minnesota (for respondent)

         Considered and decided by Bjorkman, Presiding Judge; Ross, Judge; and Reilly,

Judge.

                          UNPUBLISHED OPINION

REILLY, Judge

         In this appeal from the district court’s order sustaining revocation of appellant’s

driver’s license under Minnesota’s implied consent law, appellant challenges the
admissibility of the Intoxilyzer breath test report and further argues that the warrantless

breath test was unconstitutional. We affirm.

                                         FACTS

       On October 2, 2011, at 2:10 a.m., a police officer with the West Hennepin Public

Safety Department received a dispatch call regarding a driving complaint. The officer

responded to the dispatch call and stopped a vehicle driven by appellant David Joseph

Masters. Upon approaching the vehicle, the officer saw signs that appellant had been

consuming alcohol.      The officer conducted a series of field sobriety tests and

administered a preliminary breath test, which indicated an alcohol concentration of .112.

The officer placed appellant under arrest for suspicion of driving under the influence and

transported him to the West Hennepin Public Safety police department.

       The officer read appellant the Minnesota implied-consent advisory and offered

appellant the opportunity to consult with an attorney. Appellant indicated that he wished

to consult with an attorney and the officer made a telephone available to him from

3:10 a.m. to 3:30 a.m. Appellant then agreed to submit a sample of his breath for testing.

The officer was trained to operate the Intoxilyzer breath testing instrument and had been

certified to use the equipment for approximately 16 years.          The officer instructed

appellant to take a deep breath, make a tight seal on the tube, and blow hard. The officer

observed that appellant did not follow these directions. Specifically, appellant started and

stopped blowing into the Intoxilyzer breathing tube many times but apparently had no

difficulty breathing. Appellant made 18 attempts before the instrument accepted his first

breath sample and registered an alcohol concentration of .079.         During the second


                                             2
attempt, appellant began coughing and blew into the breathing tube 33 separate times,

none of which produced an adequate sample. The Intoxilyzer machine timed out after

four minutes. Appellant did not provide an adequate volume of air for the Intoxilyzer to

accept the second test. The instrument reported a deficient second sample and the officer

concluded that appellant refused the test.

         As of October 9, 2011, the commissioner revoked appellant’s driving privileges as

a result of his refusal and impounded his license plates. Appellant sought rescission of

the revocation of his driving privileges and challenged the constitutionality of the test.

After conducting the implied consent hearing the district court issued an order sustaining

revocation of appellant’s driving privileges and license plate impoundment. This appeal

followed.

                                      DECISION

                                              I.

         Findings of fact will not be reversed unless clearly erroneous and “[d]ue regard is

given the district court’s opportunity to judge the credibility of witnesses.” Snyder v.

Comm’r of Pub. Safety, 744 N.W.2d 19, 22 (Minn. App. 2008). Conclusions of law will

be overturned only upon a determination that the trial court has erroneously construed

and applied the law to the facts of the case. Dehn v. Comm’r of Pub. Safety, 394 N.W.2d

272, 273 (Minn. App. 1986). “Rulings on evidentiary matters rest within the sound

discretion of the district court and will not be reversed on appeal absent a clear abuse of

discretion.” In re Source Code Evidentiary Hearings, 816 N.W.2d 525, 537 (Minn.

2012).


                                              3
       At the March 29, 2013 hearing, the district court heard testimony from the

arresting officer and received into evidence the booking and testing audio and video

without objection. The district court also provisionally received the Intoxilyzer breath

test results “not to conclusively establish that there was a willful refusal, but to be

considered with other evidence to determine” whether appellant provided a deficient

sample. Appellant objected to the introduction of the Intoxilyzer test results on the

grounds that the state failed to lay an adequate foundation for the test record.

       When a breath test is offered as evidence, “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.”          In re Source Code, 816 N.W.2d at 542

(quoting Minn. Stat. § 169A.51, subd. 5(a) (2010)). For a sample to be adequate, the

individual taking the test must

              (1) start blowing at 0.17 liters per second, (2) maintain a
              breath rate of at least 0.15 liters per second, (3) maintain that
              rate for at least two seconds, (4) blow a minimum volume of
              air of at least 1.1 liters, and (5) attain a fairly level slope that
              is rising at a rate of less than seven percent.

Id. Failure to provide “two separate, adequate breath samples in the proper sequence

constitutes a refusal.” Id. (quoting Minn. Stat. § 169A.51, subd. 5(c) (2010)). In an

implied consent hearing,

              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, as defined in section
              169A.03, subdivision 11, pursuant to training given or
              approved by the commissioner of public safety or the
              commissioner’s acting agent, are admissible in evidence
              without antecedent expert testimony that an infrared or other


                                               4
              approved breath-testing instrument provides a trustworthy
              and reliable measure of the alcohol in the breath.

Minn. Stat. § 634.16 (2012).

       Here, the district court found that the test was administered by “a certified

Intoxilyzer operator” and that the officer’s testimony was “credible” regarding

appellant’s unwillingness to provide two adequate breath samples. The Intoxilyzer breath

test results showed that appellant provided 18 breath attempts during the first test and 33

attempts during the second test. The first breath sample was accepted as sufficient with a

reported value of .079 and a replicate value of .080. The second breath sample was

deficient.   With respect to the second test, the district court noted that appellant’s

coughing “appeared feigned because it became frequent only when he was trying to

justify his failure to provide a sample.” The district court determined that appellant’s

breath sample was deficient due to his “willful failure to provide two adequate samples

and not a software failsafe, physical inability or some other reason.”           The order

concluded that, by failing to provide two adequate samples, appellant was deemed to

have refused the test.

       Appellant argues that the district court abused its discretion by considering the

Intoxilyzer test records without first requiring the state to establish an adequate

foundation for the test record. Appellant relies on In re Source Code for the proposition

that an Intoxilyzer test record indicating a deficient sample is unreliable and inadmissible

unless the state provides scientific evidence demonstrating that the deficient sample was

not the result of a source code error. 816 N.W.2d at 543. Appellant’s reliance on In re



                                             5
Source Code is misplaced. As an initial matter, the fact pattern in this case is readily

distinguishable. In re Source Code addressed the issue of a breath sample that could be

erroneously labeled deficient if a person was blowing “exorbitantly hard,” id. at 534,

whereas appellant in this case produced short, choppy breaths and was unable to provide

an adequate volume of air.

       Moreover, the Minnesota Supreme Court recognized that a district court properly

admits a deficient-sample Intoxilyzer breath report if there is “other evidence or

observations that demonstrate the deficient sample was not the result of a source code

error.” Id. at 543 (allowing state to establish that “deficient sample” is not due to

software failsafe by presenting “additional evidence,” including specifically “an officer’s

observation” regarding person’s conduct) (emphasis added). We generally read the use

of the word “or” when connecting a series of clauses to be disjunctive. Gassler v. State,

787 N.W.2d 575, 585 (Minn. 2010). In re Source Code explicitly stated that a district

court could properly rely on “additional evidence or observations that demonstrated that

the reported ‘deficient sample’ was not the result of the software failsafe.” 816 N.W.2d

at 543. The district court credited the police officer’s testimony that appellant was a

noncompliant test subject, reviewed the video and audio tapes as well as the Intoxilyzer

report, and ultimately concluded that the failure to provide an adequate second sample

“was due to [appellant’s] unwillingness to comply with instructions rather than physical

inability or a testing device error.” These findings are factually supported and are not

clearly erroneous. We therefore see no abuse of discretion in the trial court’s decision

that appellant failed to provide two adequate breath samples.


                                            6
                                           II.

      Appellant challenges the constitutionality of the warrantless chemical test. Both

the Fourth Amendment to the United States Constitution and Article I, Section 10 of the

Minnesota Constitution prohibit unreasonable searches and seizures. U.S. Const. amend.

IV; Minn. Const. art. I, § 10. A breath test is a search. Skinner v. Ry. Labor Execs.’

Ass’n, 489 U.S. 602, 616-17, 109 S. Ct. 1402, 1413 (1989). Nevertheless, a warrantless

search is valid “if the subject of the search consents.” Id. In order for the exception to

apply, “the State must show by a preponderance of the evidence that the defendant freely

and voluntarily consented.” Id. Whether consent is voluntary must be determined on a

case-by-case basis, examining the totality of the circumstances. State v. Lemert, 843

N.W.2d 227, 233 (Minn. 2014) (quoting Missouri v. McNeely, 133 S. Ct. 1552, 1536

(2013)). This analysis includes ‘“the nature of the encounter, the kind of person the

defendant is, and what was said and how it was said.”’ Brooks, 838 N.W.2d at 569

(quoting State v. Dezso, 512 N.W.2d 877, 880 (Minn. 1994)).

      During oral argument, appellant acknowledged that his consent argument preceded

Brooks.   Moreover, the record supports the district court’s finding that appellant’s

consent to the breath test was not coerced. The officer administered field sobriety tests

and a preliminary breath test to appellant. Based upon the results, the officer placed

appellant under arrest for suspicion of driving under the influence. The officer drove

appellant to the police department and read the implied consent advisory. The wording

of the advisory is compelled by statute as set forth in Minnesota Statutes

section 169A.51, subdivision 2 (2012). Under Minnesota’s implied consent law, anyone


                                            7
who drives a motor vehicle in the state consents “to a chemical test of that person’s

blood, breath, or urine for the purpose of determining the presence of alcohol” when

certain conditions are met.     Minn. Stat. § 169A.51, subd. 1(a) (2012); Brooks, 838

N.W.2d at 569. A police officer can require someone to submit to a test when the officer

“has probable cause to believe the person committed the offense of driving while

impaired and the person has been lawfully arrested for driving while impaired.” Brooks,

838 N.W.2d at 569. As part of the advisory, appellant was told both that “Minnesota law

requires him to take a test” and “that refusal to take a test is a crime.” Minn. Stat.

§ 169A.51, subd. 2(1), (2) (2012). Appellant asked to speak with an attorney and a

telephone was made available to him for a period of 20 minutes. Appellant agreed to

submit a sample of his breath for testing. Given the totality of the circumstances, as

outlined in Brooks, appellant’s agreement to submit to a breath test was freely and

voluntarily given. The district court did not err in sustaining the revocation of appellant’s

driving privileges and the impoundment of his license plates.

       Affirmed.




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