State v. Ards

816 N.W.2d 679, 2012 WL 2873876, 2012 Minn. App. LEXIS 67
CourtCourt of Appeals of Minnesota
DecidedJuly 16, 2012
DocketNo. A11-1117
StatusPublished
Cited by9 cases

This text of 816 N.W.2d 679 (State v. Ards) is published on Counsel Stack Legal Research, covering Court of Appeals of Minnesota primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
State v. Ards, 816 N.W.2d 679, 2012 WL 2873876, 2012 Minn. App. LEXIS 67 (Mich. Ct. App. 2012).

Opinion

OPINION

SCHELLHAS, Judge.

Appellant challenges his convictions of second-degree driving while impaired (DWI) and second-degree driving with an alcohol concentration of .08 or more, arguing that the district court violated his right to a fair trial and that the evidence is insufficient to support his convictions. We affirm.

FACTS

On December 5, 2010, at approximately 9:00 p.m., St. Paul Police Officer Tonya Tamm responded to a report of a pickup truck following a pedestrian on Flandrau Street in St. Paul. According to the report, the truck driver and the pedestrian were arguing. When Officer Tamm arrived at the location, she saw a pickup truck driving on Flandrau Street and a pedestrian walking on the sidewalk. Officer Tamm attempted to catch up to the truck, but when she was about a block behind it, the truck driver made a U-turn, revved the engine, and accelerated at a high rate of speed. At the time, Flandrau Street was ice- and snow-packed and very slippery. After accelerating, the truck fishtailed and moved “sideways down the middle of the street.” Officer Tamm described the driving as “erratic” and believed that the truck driver was not driving reasonably under the conditions.

Officer Tamm initiated a traffic stop and, upon approaching the truck driver, observed that he was the only occupant, smelled strongly of the odor of alcohol, had bloodshot and watery eyes, and had slurred speech. Officer Tamm determined the driver to be appellant Euric Ards, and Ards said that he had consumed five alcoholic drinks before driving. Officer Tamm asked the driver to step outside the truck, and she conducted a horizontal gaze nys-tagmus test (HGN), which detects one’s rapid eye movement, to further assess whether the driver was alcohol impaired. Ards failed six out of eight indicators, and Officer Tamm arrested Ards. She did not perform additional field sobriety tests because of the slippery road conditions.

At the Ramsey County Law Enforcement Center, Officer Tamm read Ards the implied-consent advisory and he consented to provide breath samples for chemical testing. Officer Tamm, who is trained and certified to use the Intoxilyzer, administered the test. The Intoxilyzer functioned properly, including its performance of internal diagnostics to ensure proper function, and provided a control reading within an acceptable range. The reading from the first breath sample was .131, with a replicate reading of .132. The control reading was .083 and its replicate reading was .082. The reading from the second breath sample was .119, with a replicate reading of .121. Because the test result is based on the lowest of the four readings from the two breath samples, the Intoxi-lyzer reported Ards’s alcohol concentration as .11.

Respondent State of Minnesota charged Ards with second-degree DWI and second-degree driving with an alcohol concentration of .08 or more, in violation of Minn. Stat. §§ 169A.20, subd. 1(1), (5), 169A.25, subd. 1(a) (2010). At the jury trial, the state offered Officer Tamm’s testimony and the Intoxilyzer test results. Ards did not object.

[682]*682At the conclusion of the state’s case, Ards requested a directed verdict on the charge for driving with an alcohol concentration of .08 or more. Ards argued that the test results were insufficient to prove that his alcohol concentration was .08 or more because one of the control readings was outside of the acceptable variation range. The state argued that no evidence established that the test result was improper or unreliable if one of two control readings is not within the acceptable variation range. The district court denied Ards’s request for a directed verdict, concluding that evidence of the test results was sufficient to present a fact question to the jury concerning the test’s reliability. A jury found Ards guilty of both counts, and the district court imposed a sentence on the conviction of second-degree driving with an alcohol concentration of .08 or more.

This appeal follows.

ISSUES
1. Is a police officer’s testimony about an individual’s alcohol impairment based on personal observation expert opinion testimony within the meaning of Minnesota Rule of Evidence 702?
2. Is the evidence sufficient to support the convictions of driving while impaired and driving with an alcohol concentration of .08 or more?
ANALYSIS
I. Admission of Police Officer’s Testimony

Ards argues that the district court violated his right to a fair trial by allowing Officer Tamm to offer “expert opinion testimony” on the ultimate issue for the jury: that Ards was impaired in violation of Minnesota DWI laws. Ards also argues that the district court erred by allowing Officer Tamm to testify that the Intoxilyzer test result was reliable. This court will reverse a district court’s evidentiary rulings only for a clear abuse of discretion. Bernhardt v. State, 684 N.W.2d 465, 474 (Minn.2004). Because Ards did not object to the district court’s admission of the challenged testimony, this court reviews the district court’s decision for plain error. State, v. Griller, 583 N.W.2d 736, 740 (Minn.1998). Ards therefore “must show that the district court’s failure to sua sponte exclude the testimony at issue constituted (1) an error; (2) that was plain; and (3) that affected [Ards’s] substantial rights.” State v. Medal-Mendoza, 718 N.W.2d 910, 919 (Minn.2006).

A. Testimony About Impairment

Ards asserts that Officer Tamm’s testimony about his impairment was expert testimony because the state offered evidence of Officer Tamm’s “specialized training” and “experience.” Officer Tamm testified that she underwent the standard week-long training for police officers to learn how to detect impaired drivers and administer standard field sobriety tests and, during her seven years as a police officer, had been involved in over 100 arrests or investigations concerning DWI offenses. Ards argues that the district court erred by admitting Officer Tamm’s testimony about his impairment because it was expert testimony within the meaning of Minnesota Rule of Evidence 702 and went to the ultimate issue for the jury — whether Ards was impaired when he drove. The state asserts that Officer Tamm did not testify about Ards’s impairment as an expert witness.

Ards’s argument that Officer Tamm’s impairment testimony was “expert opinion testimony” is unavailing. Officer Tamm testified about her personal observations of Ards. The Minnesota Supreme Court has long recognized that a layperson may [683]*683testify as to her opinion about a person’s intoxication and that the issue is “hardly a question for expert testimony.” McKillop v. Duluth St. Ry. Co., 53 Minn. 532, 537, 55 N.W. 739, 739 (1893) (reversing for new trial because court excluded “opinions of the witnesses that plaintiff was intoxicated”). Simply because Officer Tamm has specialized training and experience did not convert her impairment testimony to expert testimony, thereby preventing her from offering her opinion about whether Ards was impaired.

In State v. Simonsen, 252 Minn. 315, 328, 89 N.W.2d 910

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Cite This Page — Counsel Stack

Bluebook (online)
816 N.W.2d 679, 2012 WL 2873876, 2012 Minn. App. LEXIS 67, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-ards-minnctapp-2012.