Summary
noting that DWI statute "allow the use of a partial test to prove that someone is under the influence"
Summary of this case from State v. BraunOpinion
No. C6-85-1396.
October 29, 1985. Review Denied December 19, 1985.
Appeal from the County Court, St. Louis County, Galen C. Wilson, J.
Hubert H. Humphrey, III, Atty. Gen., St. Paul, Philip J. Sorenson, Asst. City Atty., William Dinan, Duluth City Atty., Duluth, for appellant.
Mark A. Munger, MacDonald, Munger Downs, Duluth, for respondent.
Heard, considered and decided by POPOVICH, C.J., and WOZNIAK and HUSPENI, JJ.
OPINION
This is an appeal by the State of Minnesota from a pretrial order preventing the State from charging respondent Jack Hallfielder with driving with an alcohol concentration of 0.10 or more. We affirm.
FACTS
Duluth police officers arrested Hallfielder for D.W.I. The intoxilyzer test for alcohol concentration resulted in one adequate sample of .216 and one deficient sample of .207. Hallfielder brought a motion seeking to preclude the State from proving at trial, through the use of the partial test, that he had violated Minn.Stat. § 169.121, subd. 1(d) (1984), by driving with an alcohol concentration of 0.10 or more.
ISSUE
May a partial intoxilyzer test be used to prove a violation of Minn.Stat. § 169.121, subd. 1(d) (1984)?
ANALYSIS
Minn.Stat. § 169.121, subd. 1(d) (1984) provides that it is a misdemeanor for a person to drive with an alcohol concentration of 0.10 or more. Minn.Stat. § 169.123 (1984) requires two adequate breath samples for a valid intoxilyzer test. Id. at subd. 2b(a); Godderz v. Commissioner of Public Safety, 369 N.W.2d 606, 607 (Minn.Ct.App. 1985). In Godderz, we stated that a partial test cannot be used in a criminal D.W.I. prosecution to establish an alcohol concentration of 0.10 or more. Id.
Appellant essentially requests us to reconsider that decision. We decline to do so. While § 169.121, subd. 2 does allow the use of a partial test to prove that someone is under the influence, Minn.Stat. § 169.121, subd. 1(a), it does not provide that a partial test can be used to establish 0.10 or more, id., subd. 1(d).
DECISION
The trial court did not err in precluding the State from using a partial intoxilyzer test to prove a violation of Minn.Stat. § 169.121, subd. 1(d). Respondent is awarded $750.00 in attorney's fees for this appeal pursuant to Minn.R.Crim.P. 28.04, subd. 2(6).
Affirmed.