State of Minnesota, Respondent, vs. Sheldon Gaard, Appellant.

This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480 A. 08, subd. 3 (2002).

 

STATE OF MINNESOTA

IN COURT OF APPEALS

C8-03-10

 

State of Minnesota,

Respondent,

 

vs.

 

Sheldon Gaard,

Appellant.

 

Filed September 23, 2003

Affirmed; motion denied
Klaphake, Judge

 

Hennepin County District Court

File No. 02021787

 

Mike Hatch, Attorney General, 1800 NCL Tower, 445 Minnesota Street, St. Paul, MN  55101-2134; and

 

Jay M. Heffern, Minneapolis City Attorney, Raymond Cantu, Assistant City Attorney, 300 Metropolitan Centre, 333 South Seventh Street, Minneapolis, MN  55402-2453 (for respondent)

 

Sheldon Gaard, 85144 215th Street, Albert Lea, MN  55607 (pro se appellant)

 

            Considered and decided by Klaphake, Presiding Judge, Peterson, Judge, and Minge, Judge.

U N P U B L I S H E D   O P I N I O N

KLAPHAKE, Judge

            Sheldon Gaard appeals pro se from his conviction for second-degree driving while impaired with an alcohol concentration of 0.10 or more.  See Minn. Stat. §§ 169 A. 20, subd. 1(5), 169 A. 25, subds. 1, 2 (2002).  He raises issues involving the legality of the stop of his vehicle, the administration and admissibility of the field sobriety tests, his arrest, and the sufficiency of the evidence to support his conviction.  Because the officer lawfully stopped appellant based on an articulable suspicion that appellant was speeding, noticed common indicia of intoxication, and properly administered three field sobriety tests, which appellant failed, we conclude that the officer had probable cause to arrest appellant.  Because the test results were reliable and because the evidence was otherwise sufficient, we affirm appellant's conviction.

D E C I S I O N             1.         Stop of Vehicle                                  Appellant argues that the stop of his vehicle was unlawful because the officer did not have an articulable suspicion that he was speeding.  Whether a stop is valid is a question of law on given facts.  Berge v. Comm'r of Pub. Safety, 374 N.W.2d 730, 732 (Minn. 1985).  Appellant claims that the officer could not credibly determine his speed, in part because the officer failed to perform an external test on the laser device.  See Minn. Stat. § 169.14, subd. 10(a)(4) (2002) (stating that evidence of speed as determined by radar or other speed-measuring device is admissible if "the device was tested by an accurate and reliable external mechanism, method, or system at the time it was set up").

            The district court concluded that even if the laser reading of appellant's speed was inadmissible due to lack of external tests, the stop was nevertheless legal based on the officer's visual estimate of the speed of the vehicle.  See LeMieux v. Bishop, 296 Minn. 372, 378, 209 N.W.2d 379, 383 (1973) (stating estimate of automobile speed is generally viewed as subject on which "lay person gifted with reasonable intelligence, given a fair opportunity to observe, and having ordinary experience with moving vehicles may give opinion testimony").  We agree.

            The officer testified that he had received training in visual speed estimating, which included comparing his estimates to known results, and that his estimates were accurate "for the most part."  The officer visually estimated that appellant was traveling over the posted 30 miles per hour speed limit based on his observation over a three-block distance that appellant was gaining speed on the other traffic.  The officer then took a laser reading of appellant's speed, which indicated that he was traveling 45 miles per hour.  The officer testified that he had received four hours of training with the laser device.  The officer further testified that he had not conducted any external tests on the machine that evening, but had conducted several successful internal checks, including taking a reading of the device while aimed at a stationary object, which read zero.

            Based on his visual observations alone, the officer had a specific and articulable suspicion that appellant was speeding.  We therefore affirm the district court's determination that the stop of appellant's vehicle was lawful.  See Marben v. State, Dept. of Pub. Safety, 294 N.W.2d 697, 699 (Minn. 1980) (stating that officer need only have "specific and articulable suspicion" of traffic violation to justify stop).

            2.         Field Sobriety Tests

Appellant argues that probable cause was required before the administration of the field sobriety tests, which he considers an unlawful search.  When the officer approached appellant's vehicle, he observed that appellant's eyes were watery and bloodshot, his breath had a distinct odor of alcohol, his actions were slow and delayed, and his speech was slurred.  These signs are all indications of intoxication.  After making a lawful stop and observing signs of intoxication, an officer can administer a preliminary screening test and field sobriety tests.  State v. Sellers, 350 N.W.2d 460, 462-63 (Minn. App. 1984).

Appellant also argues that the officer lacked the expertise to administer one of the tests, the nystagmus test, and that the officer's testimony on this test was not credible because the weather conditions and flashing lights could have impacted appellant's test performance.  We disagree.  The officer testified that he received training at the police academy and was certified to administer the horizontal gaze nystagmus test.  The officer further explained the test and demonstrated it to the jury.  Given this testimony, the district court did not abuse its discretion in admitting the officer's testimony regarding the test results.  Even if this evidence was erroneously admitted, the error was harmless because appellant also failed to pass two field sobriety dexterity tests, the one-legged stand and the walk-and-turn tests.

Appellant further argues that he did not consent to the field sobriety tests.  There is no requirement that a driver must consent to field sobriety tests, once he is lawfully stopped and exhibits other indicia of intoxication.  In any event, the officer here testified that appellant voluntarily consented to the tests.  The district court accepted the officer's testimony, and we defer to the court's credibility determinations.  See Minn. R. Civ. P. 52.01.  Because the field sobriety tests were lawfully administered, the district court did not abuse its discretion in considering evidence regarding these tests.

            3.         Arrest

Appellant argues that the officer lacked probable cause to arrest him for driving while impaired.  "Probable cause exists when all the facts and circumstances would lead a cautious person to believe that the driver was under the influence."  Davis v. Comm'r of Pub. Safety, 509 N.W.2d 380, 392 (Minn. App. 1993) (stating that probable cause existed when suspect smelled strongly of alcohol, had bloodshot and glassy eyes, had slurred speech, admitted to drinking, and failed three field sobriety tests), aff'd, 517 N.W.2d 901 (Minn. 1994).  

            Here, the officer stopped appellant after observing him speeding.  When the officer approached the car, he noticed that appellant's eyes were watery and bloodshot, his speech was slurred, and his breath smelled of alcohol.  The officer thereafter administered three field sobriety tests to appellant, all of which he failed.  These observations established objective probable cause to believe that appellant was driving while impaired.

            The district court determined, and we agree, that the officer did not arrest appellant until after the field sobriety tests, at which time the officer had probable cause.  Once appellant was taken into custody, the officer read him the implied consent advisory and administered the breath tests, which showed appellant to have a 0.11 blood alcohol level.  We conclude that the district court did not err in determining that there was probable cause to arrest appellant for driving while impaired.

            4.         Sufficiency of the Evidence

            Appellant claims that there was insufficient evidence to support his conviction on count two, driving while impaired with an alcohol concentration of 0.10 or more.  See Minn. Stat. § 169 A. 20, subd. 1(5) (2002).  He insists that the jury could not find him guilty on count two because it did not find him guilty on count one, driving while impaired "when the person is under the influence of alcohol."  See Minn. Stat. § 169 A. 20, subd. 1(1).  Nothing prohibits appellant from being convicted on count two and acquitted on count one; both counts fall under the same subdivision and the statute uses the disjunctive "or."

Embedded in appellant's argument regarding the sufficiency of the evidence is his challenge to the reliability of the Intoxilyzer 5000 and how the Intoxilyzer test was administered.[1]  The Intoxilyzer test has been held to be a "reliable and accurate measuring device of alcohol in the breath when properly administered."  Luoma v. City of Minneapolis, 398 N.W.2d 650, 652 (Minn. App. 1987), review denied (Minn. Feb. 18, 1987). 

            Once the state makes a prima facie showing of "trustworthy administration, it is incumbent upon [appellant] to suggest a reason why the . . . test was untrustworthy."  Fritzke v. Comm'r of Pub. Safety, 373 N.W.2d 649, 650 (Minn. App. 1985) (quotation omitted).  Here, the state made its prima facie case by presenting the testimony of the officer that he was certified to administer the Intoxilyzer 5000, that the machine was in proper working order, and that the chemicals were in proper condition.  See State v. Wickern, 411 N.W.2d 597, 599 (Minn. App. 1987) (stating factors to consider when determining reliability of Intoxilyzer results).

            To rebut the state's case, appellant must prove that he burped, belched, or regurgitated during the observation period.  DeBoer v. Comm'r of Pub. Safety, 406 N.W.2d 43, 45 (Minn. App. 1987).  Appellant does nothing more than argue that the officer did not observe whether or not he burped, belched, or did anything else that might invalidate the test.  However, "[f]ailure of the police officer to specifically watch for signs of burping or regurgitation does not fatally flaw the observation period."  Id.  Moreover, appellant could not put anything in his mouth to alter the test results because he was handcuffed, and the officer testified that he would have heard appellant burp or belch.  The jury was entitled to reject appellant's testimony and to infer from the other evidence presented that the test results were reliable.  See State v. Pieschke, 295 N.W.2d 580, 584 (Minn. 1980) ("weighing the credibility of witnesses is the exclusive function of the jury").

            Appellant further challenges the accuracy of the test results and suggests that he was actually below the 0.10 requirement because of the margin of error.  This court, however, has repeatedly ruled that the commissioner is not required to prove a 0.10 alcohol concentration within any margin of error.  Loxtercamp v. Comm'r of Pub. Safety, 383 N.W.2d 335, 336-37 (Minn. App. 1986), review denied (Minn. May 22, 1986); Dixon v. Comm'r of Pub. Safety, 372 N.W.2d 785, 786 (Minn. App. 1985).

Finally, appellant challenges the credibility of numerous other statements made at trial by various witnesses.  Again, credibility determinations are a function of the jury or the district court as factfinder.  See Pieschke, 295 N.W.2d at 584.

            5.         Other Arguments

            Appellant argues that he was not informed of his right to appeal after sentencing.  Admittedly, the record fails to indicate whether or not appellant was informed of his right to appeal as required under Minn. R. Crim. P. 27.03, subd. 5.  Nevertheless, because appellant timely filed his notice of appeal on January 6, 2003, two days before the January 8 deadline, any error in this regard was harmless.

            In a motion that appellant has filed to correct his sentence, he argues that he was not released for house arrest as outlined at the sentencing hearing.  This motion was construed to extend the scope of review to the sentence and was deferred to this panel.  See State v. Gaard, No. C8-03-10 (Minn. App. May 1, 2003) (order).  On January 7, 2003, the district court issued an order that required appellant to "serve [the] balance of [his] sentence on electronic home monitoring through Minnesota Monitoring."  Because this modification to appellant's sentence occurred after this appeal was filed, however, and because no transcript of the hearing on this modification has been provided to us, we are unable to adequately review the issue raised in appellant's motion.

            Affirmed; motion denied.

[1]  The documents and articles that appellant includes in the beginning of his appellate brief and that he refers to throughout that brief were not part of the record below.  We therefore decline to consider this evidence on appeal.  See Minn. R. Civ. App. P. 110.01 (record on appeal consists of documents submitted to district court).