                         This opinion will be unpublished and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
                                    A14-0772

                                  State of Minnesota,
                                     Respondent,

                                           vs.

                                  Paul Richard Dehn,
                                      Appellant.

                               Filed February 17, 2015
                                      Affirmed
                                     Kirk, Judge

                            Blue Earth County District Court
                                File No. 07-CR-10-4316


Lori Swanson, Attorney General, St. Paul, Minnesota; and

Ross E. Arneson, Blue Earth County Attorney, Mankato, Minnesota (for respondent)

Calvin P. Johnson, Elizabeth M. Levine, Calvin P. Johnson Law Firm, LLC, Mankato,
Minnesota (for appellant)


      Considered and decided by Ross, Presiding Judge; Kirk, Judge; and Reilly, Judge.

                        UNPUBLISHED OPINION

KIRK, Judge

      In this appeal following his convictions of third-degree driving under the

influence, appellant Paul Richard Dehn raises several arguments regarding the legality of
the traffic stop, the implied-consent process, and the administration of his court trial. We

affirm.

                                         FACTS

          Following a traffic stop on October 2, 2010, appellant was charged with two

counts of third-degree driving while impaired.       Appellant later moved to suppress

evidence from the stop.      The district court denied appellant’s motion to suppress,

concluding that the traffic stop was reasonable, appellant was not entitled to a Miranda

warning, the police officers vindicated appellant’s limited right to counsel, and appellant

consented to the urine test. The parties then conducted a trial before the district court.

Following the trial, appellant challenged the state’s introduction of testimony regarding

appellant’s preliminary breath test (PBT), the Minnesota Bureau of Criminal

Apprehension (BCA) report regarding appellant’s alcohol concentration, and defense

counsel’s testimony at trial, and argued that the prosecutor had committed misconduct.

The district court rejected appellant’s arguments regarding the admission of evidence and

the prosecutor’s conduct and found appellant guilty of both counts of driving while

impaired. This appeal follows.1




1
  Because the state did not file a brief in this appeal, we ordered the matter to be
determined on the merits pursuant to Minn. R. Civ. App. P. 142.03. A brief from the
state in this complicated, multi-issue appeal would have been helpful to this court.

                                             2
                                     DECISION

I.     The district court did not err by concluding that the officers were justified in
       conducting a traffic stop of appellant’s vehicle.

       Appellant first argues that the district court erred in concluding that the police

officers were justified in conducting a traffic stop of his vehicle. When reviewing a

pretrial order denying a motion to suppress evidence, this court “review[s] the facts to

determine whether, as a matter of law, the court erred when it failed to suppress the

evidence.” State v. Flowers, 734 N.W.2d 239, 247 (Minn. 2007). “[W]e review the

district court’s factual findings under a clearly erroneous standard and the district court’s

legal determinations de novo.” State v. Gauster, 752 N.W.2d 496, 502 (Minn. 2008).

       The United States and Minnesota Constitutions prohibit unreasonable searches and

seizures. U.S. Const. amend. IV; Minn. Const. art. I, § 10. A police officer’s temporary

detention of an individual during a traffic stop constitutes a seizure. State v. Thiel, 846

N.W.2d 605, 610 (Minn. App. 2014), review denied (Minn. Aug. 5, 2014). But “[l]imited

investigatory stops are allowed if police have reasonable articulable suspicion of a motor

vehicle violation or of criminal activity.” State v. Johnson, 645 N.W.2d 505, 508 (Minn.

App. 2002). To justify an investigatory traffic stop, “the police must only show that the

stop was not the product of mere whim, caprice or idle curiosity, but was based upon

specific and articulable facts which, taken together with rational inferences from those

facts, reasonably warrant that intrusion.” State v. Anderson, 683 N.W.2d 818, 823 (Minn.

2004) (quotation omitted).




                                             3
       “[I]f an officer observes a violation of a traffic law, however insignificant, the

officer has an objective basis for stopping the vehicle.” State v. George, 557 N.W.2d

575, 578 (Minn. 1997). But an officer’s observation of a single instance of swerving

within a traffic lane does not, by itself, create reasonable, articulable suspicion to support

a traffic stop.    State v. Brechler, 412 N.W.2d 367, 368-69 (Minn. App. 1987).

Nevertheless, this court has determined that swerving within a traffic lane and crossing

over the center line can provide a reasonable, articulable suspicion sufficient to justify a

traffic stop. See, e.g., State v. Wagner, 637 N.W.2d 330, 336 (Minn. App. 2001) (finding

an objective, reasonable basis to conduct a traffic stop when the driver crossed the center

line and drove on the shoulder); State v. Dalos, 635 N.W.2d 94, 96 (Minn. App. 2001)

(holding that “continuous weaving within one’s own lane is sufficient by itself to create a

reasonable articulable suspicion of criminal activity to support a traffic stop”).

       Here, the district court concluded that the traffic stop was justified because Blue

Earth County Sheriff’s Deputy Scott Wolfe saw appellant’s vehicle “weave continuously

within its own lane and cross over the center line on one occasion.” Appellant argues

that this conclusion was erroneous because his alleged driving conduct was not captured

on Deputy Wolfe’s squad-car video. But Minnesota does not require driving conduct to

be captured on a squad-car video in order to find a reasonable, articulable suspicion to

conduct a traffic stop. See George, 557 N.W.2d at 578 (explaining that an officer’s

observations can provide an objective basis to conduct a traffic stop). And, even though

Deputy Wolfe testified on direct examination that the squad-car video recorded

appellant’s driving conduct, he later clarified that the recording automatically started


                                              4
when he turned on his emergency lights to stop appellant’s vehicle so appellant’s prior

driving conduct was not recorded. The district court specifically “credit[ed] Deputy

Wolfe’s testimony” regarding appellant’s driving conduct and the timing of the squad-car

recording. We defer to the district court’s credibility determinations on appeal. State v.

Klamar, 823 N.W.2d 687, 691 (Minn. App. 2012).

       The district court’s factual findings regarding appellant’s driving conduct are

supported by the record. Because Deputy Wolfe observed appellant’s vehicle weave

within its traffic lane and cross over the center line “at least one time,” the district court

did not err in finding a reasonable, articulable suspicion of criminal activity sufficient to

justify the traffic stop. See Wagner, 637 N.W.2d at 336; Dalos, 635 N.W.2d at 96.

II.    The district court did not err by concluding that appellant was not entitled to
       a Miranda warning.

       Appellant next argues that the district court erred in declining to suppress evidence

because the state should have advised him of his Miranda rights. “The issue of whether a

suspect is in custody and therefore entitled to a Miranda warning presents a mixed

question of law and fact” that requires “independent review of the [district] court’s

determination regarding custody and the need for a Miranda warning.” State v. Sterling,

834 N.W.2d 162, 167-68 (Minn. 2013) (quotations omitted).

       The United States and Minnesota Constitutions protect an individual from

compelled self-incrimination.      U.S. Const. amend. V; Minn. Const. art. I, § 7.

“Statements made by a suspect during a custodial interrogation are admissible only if the

statement was preceded by a Miranda warning. Thus, a Miranda warning is required if a



                                              5
suspect is both in custody and subject to interrogation.” State v. Thompson, 788 N.W.2d

485, 491 (Minn. 2010) (quotation and citations omitted). An individual is in custody if,

“based on all the surrounding circumstances, a reasonable person under the circumstances

would believe that he or she was in police custody of the degree associated with formal

arrest.” Id. (quotation omitted).

       Appellant does not clearly state the point at which he believes he was “in

custody,” but appears to suggest that it was at some point during his conversation with

Deputy Wolfe, perhaps when Deputy Wolfe took possession of appellant’s driver’s

license. When a police officer asks questions at the scene to gather information, no

Miranda warning is required. State v. Walsh, 495 N.W.2d 602, 604-05 (Minn. 1993).

Similarly, “Miranda generally does not apply to temporary investigative detentions.”

State v. Perkins, 353 N.W.2d 557, 560 (Minn. 1984). Because traffic stops are generally

temporary, brief, and conducted in public, a stopped motorist is usually not in custody for

Miranda purposes. State v. Herem, 384 N.W.2d 880, 882-83 (Minn. 1986). In addition,

the supreme court has explained that police officers are not required to give a driver a

Miranda warning before reading the implied-consent advisory and administering a

chemical test. State v. Gross, 335 N.W.2d 509, 510 (Minn. 1983) (citing South Dakota v.

Neville, 459 U.S. 553, 564 n.15, 103 S. Ct. 916, 923 n.15 (1983)).

       Citing Herem, the district court concluded that appellant was not in custody during

the October 2 traffic stop. In Herem, a police officer stopped a speeding motorcyclist,

escorted him to a patrol car to separate him from his passenger, smelled alcohol, and

performed a PBT. 384 N.W.2d at 881, 883. The supreme court concluded that the


                                            6
motorcyclist was not in custody even though he was questioned in the officer’s patrol car.

Id. at 883. Here, the district court concluded that there was even less evidence that

appellant was in custody because he was questioned while sitting in his own vehicle and

while performing field sobriety tests.

       We agree with the district court’s determination that appellant was not in custody

during the traffic stop and field sobriety testing.     The traffic stop was fairly brief,

conducted in public, and no different than other routine traffic stops that are expanded to

include field sobriety testing. See id. at 882-83. In addition, no caselaw suggests that

appellant was entitled to a Miranda warning before performing field sobriety tests or

hearing the implied-consent advisory. See Gross, 335 N.W.2d at 510 (explaining that a

Miranda warning is not required).        Appellant challenges Gross on the basis that it

discusses an earlier version of Minnesota’s implied-consent law. But Gross remains

good law and is consistent with other caselaw in this area. See Walsh, 495 N.W.2d at

604-05 (“On-the-scene questioning, where the officers are simply trying to get a

preliminary explanation of a confusing situation, does not require a Miranda warning.”

(quotation marks omitted)). Because we conclude that appellant was not in custody

during the traffic stop, he was not entitled to a Miranda warning, and the district court

properly declined to suppress evidence on that basis.

III.   The district court did not err by concluding that appellant consented to the
       urine test, the officers vindicated appellant’s right to counsel, and the
       implied-consent statute is constitutional.

       Appellant next raises several arguments regarding Minnesota’s implied-consent

process, arguing that (1) he did not consent to a warrantless search; (2) he was not


                                             7
allowed to vindicate his right to counsel; and (3) the implied-consent process violates

both his due-process rights and the unconstitutional-conditions doctrine.

       A.     Appellant consented to the urine test.

       The district court concluded that appellant voluntarily consented to the urine test

because he was read the implied-consent advisory four times, indicated that he

understood the advisory each time, and was “given ample opportunity to contact an

attorney.” But appellant argues that his consent to the PBT and urine test were coerced

because (1) he was confronted by a uniformed and armed police officer; (2) he was

arrested, handcuffed, and placed in the back of a squad car next to a police dog; and

(3) he was unable to reach an attorney at 1 a.m. while at the police station. We analyze

the district court’s finding that consent to search was voluntary for clear error, which

occurs when “we are left with the definite and firm conviction that a mistake occurred.”

State v. Diede, 795 N.W.2d 836, 846-47 (Minn. 2011).

       Collecting and testing a person’s blood, breath, or urine constitutes a search under

the Fourth Amendment and requires a warrant or an exception to the warrant

requirement. Ellingson v. Comm’r of Pub. Safety, 800 N.W.2d 805, 807 (Minn. App.

2011) (citing Skinner v. Ry. Labor Execs.’ Ass’n, 489 U.S. 602, 616-17, 109 S. Ct. 1402,

1413 (1989)), review denied (Minn. Aug. 24, 2011). Consent is an exception to the

warrant requirement. State v. Brooks, 838 N.W.2d 563, 568 (Minn. 2013), cert. denied,

134 S. Ct. 1799 (2014). “For a search to fall under the consent exception, the [s]tate must

show by a preponderance of the evidence that the defendant freely and voluntarily

consented.” Id. “Whether consent is voluntary is determined by examining the totality of


                                            8
the circumstances.” Id. (quotation omitted). A driver’s decision to take a test is not

coerced or extracted “simply because Minnesota has attached the penalty of making it a

crime to refuse the test.” Id. at 570.

         A totality-of-the-circumstances analysis requires consideration of the nature of

appellant’s encounter with the police and “what was said and how it was said.” See id. at

569. Deputy Wolfe observed appellant’s vehicle weave in its traffic lane and cross over

the center line “at least one time.”       When he approached appellant, he observed

appellant’s glassy and bloodshot eyes, and he detected an odor of alcohol emanating from

appellant’s breath. Appellant admitted to Deputy Wolfe that he had consumed a few

beers.     When Mapleton Police Officer Kyley Groby approached appellant, she

independently smelled a “strong odor of alcohol on [appellant’s] breath,” and observed

red, glossy, and watery eyes. Appellant told Officer Groby that he had had six drinks.

Appellant then agreed to perform field sobriety testing, and, after being unable to

complete the tests, agreed to the PBT.

         Appellant does not challenge the officers’ probable cause to suspect him of driving

under the influence. And, contrary to appellant’s allegation, the record contains no

evidence that Deputy Wolfe was armed or that he displayed his weapon in any way to

intimidate appellant. In addition, even though he was handcuffed and placed in the back

of a squad car next to a police dog, appellant was read the implied-consent advisory and

indicated that he wished to consult an attorney. There is no evidence that the presence of

the police dog in the squad car coerced appellant into consenting to the urine test at the

police station after he had heard the advisory three more times.


                                              9
       Based on our review of the record, at the police station, the officers gave appellant

a station phone, his cell phone, and a phone book. Appellant left a message for his

attorney and spoke to his wife, but declined to contact any other attorneys. He spent

much of his time staring at the officers. Appellant heard the implied-consent advisory

four times and stated that he understood the advisory each time. After hearing the

advisory for the fourth time, appellant agreed to a blood test, but requested a urine test

due to his fear of needles.

       No evidence suggests that appellant’s consent “was coerced in the sense that his

will had been overborne and his capacity for self-determination critically impaired.” See

id. at 571. Therefore, the district court did not err in concluding that appellant consented

to the urine test and in denying appellant’s motion to suppress. See id. at 572 (“[T]he fact

that someone submits to a search after being told that he or she can say no to the search

supports a finding of voluntariness.”).

       B.     The officers vindicated appellant’s right to counsel.

       “[A]n individual has the right, upon request, to a reasonable opportunity to obtain

legal advice before deciding whether to submit to chemical testing.”          Friedman v.

Comm’r of Pub. Safety, 473 N.W.2d 828, 835 (Minn. 1991). But due to “the evanescent

nature of the evidence in DWI cases,” the individual only has a limited amount of time to

contact an attorney. Id. “The right to counsel will be considered vindicated if the person

is provided with a telephone prior to testing and given a reasonable time to contact and

talk with counsel.” Id. (quotation omitted). “The question of whether a person has been

allowed a reasonable time to consult with an attorney is a mixed question of law and


                                            10
fact.” Parsons v. Comm’r of Pub. Safety, 488 N.W.2d 500, 501 (Minn. App. 1992).

Once the facts are established, the question becomes one of law. Id.

       Appellant argues that the district court erred in concluding that the officers

vindicated appellant’s limited right to counsel because (1) the station phone did not work

the entire time; (2) appellant was subject to verbal abuse by a police officer; (3) appellant

was not told he could contact an attorney during the fourth reading of the implied-consent

advisory; and (4) appellant was subject to police intimidation for over an hour. Appellant

argues that the district court’s findings “cannot be reconciled” with the audio recording of

the implied-consent process.

       But our review of the audio recording does not support appellant’s allegations.

The recording does not contradict Officer Groby’s testimony that she immediately gave

appellant a station phone, his cell phone, and a telephone book at the station. Nor does it

reveal any “verbal abuse” from the officers or “police intimidation.” There are sections

of silence where appellant does not appear to be making phone calls, and the officers

explained that this was his chance to contact an attorney. According to Officer Groby’s

timeline, appellant was given 30 minutes at the police station to contact an attorney.

Even though the station phone did not work the entire time, appellant testified that he was

able to use his cell phone, that he made two phone calls, and that he did not attempt to

contact another attorney. The mere fact that appellant was unable to reach his attorney

does not indicate that his consent was coerced. See Kuhn v. Comm’r of Pub. Safety, 488

N.W.2d 838, 841-42 (Minn. App. 1992) (stating that the right to counsel is vindicated




                                             11
even when the driver cannot locate his attorney and does not wish to call another

attorney), review denied (Minn. Oct. 20, 1992).

       When Officer Groby gave her fourth and final reading of the implied-consent

advisory, she omitted the section regarding appellant’s right to consult with an attorney.

The implied-consent law requires a driver to be informed “at the time a test is requested”

that he “has the right to consult with an attorney, but that this right is limited to the extent

that it cannot unreasonably delay administration of the test.” Minn. Stat. § 169A.51,

subd. 2(4) (2010). Appellant apparently suggests that Officer Groby was required to read

the full advisory, each time, including the time he consented to the urine test. But Officer

Groby had already read the full advisory three times, and appellant always stated that he

understood the advisory. The statute does not require the advisory to be read at a specific

time or multiple times. See id. And the officers were not required to provide appellant

with an unlimited amount of time to contact his attorney. See Friedman, 473 N.W.2d at

835. Given appellant’s inability to contact his attorney and his apparent disinterest in

contacting another attorney, it was reasonable for Officer Groby to skip the paragraph

about contacting an attorney and to require appellant to “make a decision regarding

testing in the absence of counsel.” See id. (quotation omitted).

       Appellant also suggests that his case is similar to Davis v. Comm’r of Pub. Safety,

509 N.W.2d 380 (Minn. App. 1993), aff’d, 517 N.W.2d 901 (Minn. 1994). In Davis, this

court affirmed the district court’s finding that a driver was not given a reasonable amount

of time to contact an attorney based on “the early hour of the morning,” the driver’s

repeated attempts to contact an attorney, and the police officer’s “‘arbitrary’


                                              12
determination that her efforts to contact an attorney would be limited to 20 minutes.” 509

N.W.2d at 385. But the only similarity to Davis is that the driver was attempting to

contact an attorney in the early morning. See id. Unlike in Davis, where the driver was

still making phone calls at the end of her 20-minute period, appellant made two phone

calls in 30 minutes and often sat quietly and stared at the officers.          Under these

circumstances, the district court did not err by concluding that the officers did not violate

appellant’s limited right to consult an attorney.        See Kuhn, 488 N.W.2d at 841

(“[R]efusing to try to contact more than one attorney or giving up trying to contact an

attorney is fundamentally different than making a continued good-faith effort to reach an

attorney.”).

       C.      Minnesota’s implied-consent law is constitutional and does not violate
               the unconstitutional-conditions doctrine.

       Appellant next challenges the constitutionality of Minnesota’s implied-consent

law. The constitutionality of a statute is a question of law that this court reviews de novo.

Rew v. Bergstrom, 845 N.W.2d 764, 776 (Minn. 2014). “[A] party challenging the

constitutionality of a statute must demonstrate beyond a reasonable doubt that the statute

violates a constitutional provision.” State v. Cox, 798 N.W.2d 517, 519 (Minn. 2011).

       Appellant argues that Minnesota’s implied-consent law is unconstitutional because

the state was required to obtain a warrant before chemical testing. But, as stated above,

consent is an exception to the warrant requirement. Brooks, 838 N.W.2d at 568. And

appellant consented to the urine test.




                                             13
       Appellant also argues that the implied-consent law is unconstitutional because it

violated his substantive-due-process rights. But we conclude that appellant has waived

this argument because he did not raise it before the district court. See Roby v. State, 547

N.W.2d 354, 357 (Minn. 1996) (explaining that an appellate court will not consider

matters, including constitutional questions, that were not argued to and considered by the

district court).

       Finally, appellant argues that the implied-consent procedure violates the

unconstitutional-conditions doctrine. But “a driver’s decision to agree to take a test is not

coerced simply because Minnesota has attached the penalty of making it a crime to refuse

the test.” Brooks, 838 N.W.2d at 570. Because appellant consented to the urine test, he

cannot establish a violation of the unconstitutional-conditions doctrine.

IV.    The district court did not err by denying appellant’s motion for a mistrial
       based on prosecutorial misconduct.

       Appellant argues that the prosecutor committed misconduct by (1) eliciting

testimony regarding appellant’s PBT and (2) calling appellant’s defense counsel to testify

at trial. When reviewing a claim of prosecutorial misconduct, we “will reverse only if the

misconduct, when considered in light of the whole trial, impaired the defendant’s right to

a fair trial.” State v. Powers, 654 N.W.2d 667, 678 (Minn. 2003). “If the misconduct

was serious, the misconduct is harmless beyond a reasonable doubt if the verdict rendered

was surely unattributable to the error. For less serious misconduct, the standard is

whether the misconduct likely played a substantial part in influencing the jury to

convict.” Id. (quotations and citations omitted).



                                             14
       Following the trial, appellant moved for a mistrial due to both of his allegations

regarding prosecutorial misconduct, and the district court denied the motions. We review

a district court’s denial of a motion for a mistrial for abuse of discretion. State v.

Manthey, 711 N.W.2d 498, 506 (Minn. 2006). We reverse the district court’s denial only

if “there is a reasonable probability that the outcome of the trial would be different if the

event that prompted the motion had not occurred.” State v. Mahkuk, 736 N.W.2d 675,

689 (Minn. 2007) (quotation omitted).

       A.     The prosecutor did not commit misconduct by eliciting testimony
              regarding appellant’s PBT.

       During Officer Groby’s testimony at trial regarding appellant’s traffic stop and his

failure to complete the field sobriety tests, the prosecutor asked whether the result of

appellant’s PBT indicated to her that she had probable cause to invoke the implied-

consent advisory. The district court overruled appellant’s objection to the prosecutor’s

reference to the PBT because the prosecutor did not ask for the PBT results.

       In general, preliminary screening test results “must not be used in any court

action.” Minn. Stat. § 169A.41, subd. 2 (2010). But these test results may be used “to

prove that a test was properly required of a person.” Id., subd. 2(1). Appellant argues

that the testimony regarding his PBT was inadmissible under section 169A.41,

subdivision 2, and that, therefore, the prosecutor committed misconduct. See State v.

Fields, 730 N.W.2d 777, 782 (Minn. 2007) (“[A]ttempting to elicit or actually eliciting

clearly inadmissible evidence may constitute misconduct.”).




                                             15
       But the district court correctly concluded that appellant’s PBT test results were not

introduced at trial. Officer Groby merely indicated that the PBT created probable cause

to invoke the implied-consent advisory. She did not discuss the test results or imply that

appellant’s PBT was “over the legal limit,” as appellant suggests. Moreover, appellant’s

trial occurred before the district court, and the judge understood that the PBT was only

mentioned “to prove that a test was properly required” of appellant. See Minn. Stat.

§ 169A.41, subd. 2(1). We conclude that the prosecutor did not commit misconduct by

mentioning appellant’s PBT, and the district court did not abuse its discretion by denying

appellant’s motion for a mistrial.

       B.     The prosecutor did not commit misconduct by calling defense counsel
              to testify.

       At trial, Dr. Kathryn Fuller, Ph.D., a forensic scientist from the BCA, testified

regarding the results of appellant’s urine test.     Appellant’s attorney challenged this

testimony, claiming that the state did not disclose Dr. Fuller as an expert witness. In

response, the prosecutor argued that appellant’s attorney “had complete notice of who

this witness would be,” and the district court overruled appellant’s objection. Following

Dr. Fuller’s testimony, the prosecutor called appellant’s attorney to the stand “to inquire

as to whether or not he received discovery in this case” regarding Dr. Fuller’s

qualifications. The defense attorney testified that someone on his staff had contacted Dr.

Fuller before the trial, that he knew the state intended to call Dr. Fuller as a witness, and

that he had received the state’s discovery regarding Dr. Fuller.




                                             16
       Appellant argues that the prosecutor violated his Sixth Amendment right to

counsel when he called his defense attorney as a witness. See U.S. Const. amend. VI;

Minn. Const. art. I, § 6.      In doing so, appellant relies on an appellate case from

Washington, State v. Regan, 177 P.3d 783 (Wash. App. 2008). In Regan, the Washington

Court of Appeals explained that the district court has broad discretion when allowing the

prosecutor to call the defense counsel as a witness. 177 P.3d at 786. But the district

court must balance “the right of the state to prove its case . . . and the right of the accused

to have unhampered and effective representation.”           Id. at 787 (quotation omitted).

Washington allows a prosecutor to call a defense attorney as a witness when the defense

attorney’s testimony “is both necessary and unobtainable from other sources.” Id. at 788.

Minnesota does not have a similar rule. See Minn. R. Prof. Conduct 3.7(a) (requiring an

attorney who is a necessary witness to withdraw from the representation). And no

caselaw suggests that Minnesota has adopted a balancing test like that in Regan for

evaluating the admissibility of defense-attorney testimony. Appellant’s (and the district

court’s) citation to Regan is therefore unpersuasive.

       We conclude that the prosecutor did not commit misconduct by calling appellant’s

attorney to testify about this limited discovery topic and that, even if he did, the

attorney’s testimony did not impair appellant’s right to a fair trial. See Powers, 654

N.W.2d at 678. In fact, the attorney’s testimony was likely irrelevant to the district

court’s decision to convict appellant of driving under the influence. See id. At this point

in the trial, the district court had already overruled appellant’s objection to Dr. Fuller’s

testimony and had allowed the prosecutor to establish her as an expert. And appellant’s


                                              17
attorney cross-examined Dr. Fuller regarding the content of her report. In addition, the

district court stated that it had independently evaluated the credibility of each witness

before reaching its verdict. We again conclude that the district court did not abuse its

discretion in denying appellant’s motion for a mistrial.

V.     The district court did not err in its evidentiary rulings.

       Finally, appellant argues that the state introduced the BCA report containing his

urine test result without laying proper foundation, and that the introduction of this report

violated his rights under the Confrontation Clause. “Evidentiary rulings rest within the

sound discretion of the [district] court and will not be reversed absent a clear abuse of

discretion.”   State v. Amos, 658 N.W.2d 201, 203 (Minn. 2003).              The erroneous

admission of evidence does not require reversal unless the error “substantially

influence[d] the jury’s decision.” State v. Nunn, 561 N.W.2d 902, 907 (Minn. 1997).

“But whether the admission of evidence violates a criminal defendant’s rights under the

Confrontation Clause is a question of law this court reviews de novo.” State v. Caulfield,

722 N.W.2d 304, 308 (Minn. 2006).

       A defendant has a constitutional right to confront the witnesses against him at trial.

U.S. Const. amend. VI. Admitting a BCA report without the testimony of the BCA

analyst who prepared it violates a defendant’s confrontation-clause rights. See Caulfield,

722 N.W.2d at 306-07. But here, Dr. Fuller, the BCA analyst who prepared the report,

testified at trial, providing appellant with the opportunity to confront the evidence against

him. Nevertheless, appellant argues that he was unable to confront the evidence against

him because the state did not introduce his urine sample into evidence. But appellant


                                             18
cites no caselaw suggesting that the state must introduce a physical urine sample to

enable a defendant to confront the evidence against him. Dr. Fuller was qualified to

testify to the results of appellant’s chemical test, and appellant was allowed to cross-

examine her.

       At trial, the district court appears to have allowed the introduction of the BCA

report as a business record, although it did not specifically state its reasoning on the

record. But, in its written order, the district court explained that the BCA report was

admissible under Minn. R. Evid. 901. Under rule 901, “authentication or identification”

is a condition precedent to the admissibility of evidence. Minn. R. Evid. 901(a). This

requirement “is satisfied by evidence sufficient to support a finding that the matter in

question is what its proponent claims.” Id. Appellant does not challenge the district

court’s determination that the BCA report was admissible under rule 901.

       Finally, appellant argues that the state did not establish which testing method the

BCA used to test appellant’s urine sample. But the officers testified that they collected

appellant’s urine sample, completed the required paperwork, and mailed the sample to the

BCA. The BCA then created a laboratory-analysis-request form regarding appellant’s

sample collected at 1:32 a.m. on October 2, 2010, and provided a kit number to the

sample. It later created a written report with the same kit number and date and time of

collection, listing an alcohol concentration of .22. Dr. Fuller testified that she tested

appellant’s sample, following all BCA protocols, and that she authored the BCA report.

Appellant cross-examined Dr. Fuller, but did not question her testing method. As the

district court stated, “[a]ny doubt as to whether the sample Dr. Fuller received and tested


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was in fact [appellant’s] sample[] is fanciful and capricious.” We conclude that the

district court did not abuse its discretion in admitting the BCA report into evidence.

       Affirmed.




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