Opinion
No. C1-96-2385.
Filed April 29, 1997.
Appeal from the District Court, Hennepin County, File No. IC474123.
Roger A. Gershin, (for appellant).
Hubert H. Humphrey, III, Attorney General, Joel A. Watne, Peter R. Marker, Assistant Attorneys General, (for respondent).
Considered and decided by Lansing, Presiding Judge, Short, Judge, and Klaphake, Judge.
This opinion will be unpublished and may not be cited except as provided by Minn. Stat. § 480A.08, subd. 3 (1996).
UNPUBLISHED OPINION
Robert L. Bartlett appeals the trial court's order sustaining revocation of his driving privileges under Minn. Stat. § 169.123, arguing the trial court erred in finding the Intoxilyzer test administered to him was reliable. We affirm.
DECISION
In a license revocation case, the proponent of a chemical test's admissibility must establish the test is reliable and that its administration in the particular instance conformed to the procedure necessary to ensure reliability. State v. Dille , 258 N.W.2d 565, 567 (Minn. 1977). After a prima facie showing of trustworthy administration, the burden of production rests on the petitioner to advance reasons why the test was untrustworthy. Tate v. Commissioner of Pub. Safety , 356 N.W.2d 766, 768 (Minn.App. 1984) (quoting Dille , 258 N.W.2d at 568). This court will sustain a trial court's findings of fact unless clearly erroneous. Johnson v. Commissioner of Pub. Safety , 374 N.W.2d 577, 579 (Minn.App. 1985).
Bartlett argues the trial court erred in determining the Intoxilyzer test he took was reliable; specifically, he contends the Intoxilyzer's simulator solution reading was too high and, therefore, should have been figured into the calculation of his subject test results. We disagree. The record demonstrates: (1) following Bartlett's first subject test, which resulted in readings of .101 and .102, the administrating officer conducted a diagnostic check and air blank of the instrument; (2) the officer tested the calibration simulator solution, which resulted in readings of .113 and .114; (3) although the simulator solution readings were above the Bureau of Criminal Apprehension's certified alcohol content of .112, the results were within the acceptable solution range of .10 to .12; (4) Bartlett's second subject test resulted in readings identical with those of his first test; (5) the administrating officer testified the Intoxilyzer was functioning properly; and (6) the trial court entertained conflicting expert testimony as to the slightly higher simulator solution reading and whether it should impact Bartlett's test results. Given these facts, we cannot say the trial court's finding that the Intoxilyzer test was reliable was clearly erroneous. See Johnson , 374 N.W.2d at 579-80 (refusing to find error in trial court's finding of Intoxilyzer reliability where simulator solution read minimally outside recommended range and court entertained conflicting expert testimony as to test results); see also Roy Matson Truck Lines, Inc. v. Michelin Tire Corp. , 277 N.W.2d 361, 362 (Minn. 1979) (holding trial court, sitting without a jury, is sole judge of witness credibility and may accept all or only part of any witness's testimony).