OPINION
DAVIES, Judge
Appellant argues that his conviction for gross misdemeanor driving with an alcohol concentration of .10 or more should be reversed because the state failed to prove beyond a reasonable doubt that his alcohol concentration was above .10 at the point the Intoxilyzer registered an adequate sample. Appellant also argues that his substantive and procedural due process rights were violated when he was required to continue blowing into the machine after it registered an adequate sample and that, by doing so, the state destroyed possibly exculpatory evidence. We affirm.
FACTS
The stipulated facts are as follows. A state trooper stopped appellant Robert Allan Rader for speeding on Interstate 94. The officer noticed the strong odor of an alcoholic beverage on Rader’s breath. Rader failed field sobriety tests administered by the officer. Rader was placed under arrest and submitted to a breath test. The breath test, performed on an [323]*323Intoxilyzer 5000, reported Rader’s alcohol concentration to be .13.
A complaint filed in Ramsey County District Court charged Rader with three drmng-under-the-influenee counts. At the omnibus hearing, Rader waived his right to a jury trial and agreed to submit the count of gross misdemeanor driving with an alcohol concentration of .10 or more to the district court on stipulated facts. The state dismissed the remaining counts.
Rader and the state stipulated that: (1) an adequate breath sample is given when the Intoxilyzer displays a zero to the left of the decimal point on the display screen; (2) the officer had Rader continue to blow after the machine registered an adequate sample; (3) the reported concentration continues to rise until the person is told to stop blowing; (4) the officer did not know the reported value when the zero appeared; (5) the reported value could have been under .10 at the point the machine reported an adequate sample; and (6) the training manual for the Intoxilyzer 5000 sets forth how the officer is to respond to information when it appears on the machine’s display.
The matter was continued pending this court’s decision in Brooks v. Commissioner of Pub. Safety, 584 N.W.2d 15 (Minn.App.1998), revieiv denied (Minn. Nov. 24, 1998). Following the Brooks decision, the district court found Rader guilty of gross misdemeanor driving with an alcohol concentration of .10 or more. The district court sentenced Rader to one year in the county jail and fined him $3,000. The sentence and payment of the fine were stayed and Rader was placed on probation.
ISSUES
I. Must the state prove beyond a reasonable doubt that the indicated alcohol concentration was .10 or more at the moment the Intoxilyzer registered an adequate breath sample?
II. Did the state violate appellant’s substantive and procedural due process rights by having him continue to blow into the Intoxilyzer after the machine registered an adequate breath sample?
III.Did the state destroy potential exculpatory evidence by having appellant continue to blow into the Intoxilyzer after the machine registered an adequate breath sample?
ANALYSIS
I. Valid and Reliable Test Results
Rader argues that the state failed to prove beyond a reasonable doubt that his alcohol concentration was .10 or more at the time the Intoxilyzer registered an adequate sample. This argument was rejected in Weierke v. Commissioner of Pub. Safety, 578 N.W.2d 815 (Minn.App.1998), and later in Brooks v. Commissioner of Pub. Safety, 584 N.W.2d 15 (Minn.App.1998), review denied (Minn. Nov. 24,1998). In Weierke, this court held that
[t]he implied consent statute does not require testing at the precise point at which a minimum adequate breath sample is provided and it permits testing of a sample that is greater than the minimum adequate sample indicated by the Intoxilyzer machine.
Weierke, 578 N.W.2d at 816. The court noted, “[t]he governing statute dictates a minimum quantity for a sample but does not suggest that the sample may not be larger than the minimum.” Id. Relying on Weierke, the court in Brooks held that
[t]he implied consent statute permits testing of a sample that is greater than the minimum adequate sample * ⅞ * and is silent on the issue of a maximum standard for an adequate breath sample.
Brooks, 584 N.W.2d at 20.
An Intoxilyzer test is comprised of “one adequate breath sample analysis, one calibration standard analysis, and a second, adequate breath sample analysis.” Minn.Stat. § 169.123, subd. 2b(a) (1998). The legislature has provided that a test sample is deemed “adequate if the instru[324]*324ment analyzes the sample and does not indicate the sample is deficient.” Id., subd. 2b(b) (1998). If the above statutory procedures are followed, the test result is deemed proper and reliable. Brooks, 584 N.W.2d at 17-18. Once the state makes a prima facie showing of the test’s reliability, the burden shifts to the driver to introduce evidence of the test’s unreliability. See Przymus v. Commissioner of Pub. Safety, 488 N.W.2d 829, 833 (Minn.App.1992) (once state establishes prima facie reliability of test administration, test opponent must suggest reasons why test is untrustworthy), review denied (Minn. Sept. 15, 1992).
Here, the proper testing procedures were followed and the Intoxilyzer indicated that it received adequate samples. The state established the prima fa-cie reliability of the test results and the burden then shifted to Rader to present evidence that the test results were somehow untrustworthy. Rader failed to present any evidence that a quantity of breath greater than the minimum adequate sample may indicate a higher alcohol concentration result than actually exists. Even though the parties stipulated that the alcohol concentration continues to rise as a driver blows past the point the Intoxilyzer indicates an adequate minimum sample, Rader has not demonstrated that the test result measured an amount above his actual alcohol concentration or that the result was not consistent with the statutory mandates. Like the defendant in Weierke, Rader “has not shown that a quantity of breath greater than the minimum adequate sample * ⅞ * inaccurately reflects the actual alcohol concentration in the body.” Weierke, 578 N.W.2d at 816.
Consistent with the decisions in Weierke and Brooks, we hold that the state is not required to prove that a defendant’s alcohol concentration is indicated to be .10 or more at the precise moment the machine registers an adequate sample. The state is required only to show that the directions of the legislature are followed.
II. Substantive and Procedural Due Process
Rader challenges the method used by the police officer during the testing process, arguing that it violated his substantive and procedural due process rights.
Free access — add to your briefcase to read the full text and ask questions with AI
OPINION
DAVIES, Judge
Appellant argues that his conviction for gross misdemeanor driving with an alcohol concentration of .10 or more should be reversed because the state failed to prove beyond a reasonable doubt that his alcohol concentration was above .10 at the point the Intoxilyzer registered an adequate sample. Appellant also argues that his substantive and procedural due process rights were violated when he was required to continue blowing into the machine after it registered an adequate sample and that, by doing so, the state destroyed possibly exculpatory evidence. We affirm.
FACTS
The stipulated facts are as follows. A state trooper stopped appellant Robert Allan Rader for speeding on Interstate 94. The officer noticed the strong odor of an alcoholic beverage on Rader’s breath. Rader failed field sobriety tests administered by the officer. Rader was placed under arrest and submitted to a breath test. The breath test, performed on an [323]*323Intoxilyzer 5000, reported Rader’s alcohol concentration to be .13.
A complaint filed in Ramsey County District Court charged Rader with three drmng-under-the-influenee counts. At the omnibus hearing, Rader waived his right to a jury trial and agreed to submit the count of gross misdemeanor driving with an alcohol concentration of .10 or more to the district court on stipulated facts. The state dismissed the remaining counts.
Rader and the state stipulated that: (1) an adequate breath sample is given when the Intoxilyzer displays a zero to the left of the decimal point on the display screen; (2) the officer had Rader continue to blow after the machine registered an adequate sample; (3) the reported concentration continues to rise until the person is told to stop blowing; (4) the officer did not know the reported value when the zero appeared; (5) the reported value could have been under .10 at the point the machine reported an adequate sample; and (6) the training manual for the Intoxilyzer 5000 sets forth how the officer is to respond to information when it appears on the machine’s display.
The matter was continued pending this court’s decision in Brooks v. Commissioner of Pub. Safety, 584 N.W.2d 15 (Minn.App.1998), revieiv denied (Minn. Nov. 24, 1998). Following the Brooks decision, the district court found Rader guilty of gross misdemeanor driving with an alcohol concentration of .10 or more. The district court sentenced Rader to one year in the county jail and fined him $3,000. The sentence and payment of the fine were stayed and Rader was placed on probation.
ISSUES
I. Must the state prove beyond a reasonable doubt that the indicated alcohol concentration was .10 or more at the moment the Intoxilyzer registered an adequate breath sample?
II. Did the state violate appellant’s substantive and procedural due process rights by having him continue to blow into the Intoxilyzer after the machine registered an adequate breath sample?
III.Did the state destroy potential exculpatory evidence by having appellant continue to blow into the Intoxilyzer after the machine registered an adequate breath sample?
ANALYSIS
I. Valid and Reliable Test Results
Rader argues that the state failed to prove beyond a reasonable doubt that his alcohol concentration was .10 or more at the time the Intoxilyzer registered an adequate sample. This argument was rejected in Weierke v. Commissioner of Pub. Safety, 578 N.W.2d 815 (Minn.App.1998), and later in Brooks v. Commissioner of Pub. Safety, 584 N.W.2d 15 (Minn.App.1998), review denied (Minn. Nov. 24,1998). In Weierke, this court held that
[t]he implied consent statute does not require testing at the precise point at which a minimum adequate breath sample is provided and it permits testing of a sample that is greater than the minimum adequate sample indicated by the Intoxilyzer machine.
Weierke, 578 N.W.2d at 816. The court noted, “[t]he governing statute dictates a minimum quantity for a sample but does not suggest that the sample may not be larger than the minimum.” Id. Relying on Weierke, the court in Brooks held that
[t]he implied consent statute permits testing of a sample that is greater than the minimum adequate sample * ⅞ * and is silent on the issue of a maximum standard for an adequate breath sample.
Brooks, 584 N.W.2d at 20.
An Intoxilyzer test is comprised of “one adequate breath sample analysis, one calibration standard analysis, and a second, adequate breath sample analysis.” Minn.Stat. § 169.123, subd. 2b(a) (1998). The legislature has provided that a test sample is deemed “adequate if the instru[324]*324ment analyzes the sample and does not indicate the sample is deficient.” Id., subd. 2b(b) (1998). If the above statutory procedures are followed, the test result is deemed proper and reliable. Brooks, 584 N.W.2d at 17-18. Once the state makes a prima facie showing of the test’s reliability, the burden shifts to the driver to introduce evidence of the test’s unreliability. See Przymus v. Commissioner of Pub. Safety, 488 N.W.2d 829, 833 (Minn.App.1992) (once state establishes prima facie reliability of test administration, test opponent must suggest reasons why test is untrustworthy), review denied (Minn. Sept. 15, 1992).
Here, the proper testing procedures were followed and the Intoxilyzer indicated that it received adequate samples. The state established the prima fa-cie reliability of the test results and the burden then shifted to Rader to present evidence that the test results were somehow untrustworthy. Rader failed to present any evidence that a quantity of breath greater than the minimum adequate sample may indicate a higher alcohol concentration result than actually exists. Even though the parties stipulated that the alcohol concentration continues to rise as a driver blows past the point the Intoxilyzer indicates an adequate minimum sample, Rader has not demonstrated that the test result measured an amount above his actual alcohol concentration or that the result was not consistent with the statutory mandates. Like the defendant in Weierke, Rader “has not shown that a quantity of breath greater than the minimum adequate sample * ⅞ * inaccurately reflects the actual alcohol concentration in the body.” Weierke, 578 N.W.2d at 816.
Consistent with the decisions in Weierke and Brooks, we hold that the state is not required to prove that a defendant’s alcohol concentration is indicated to be .10 or more at the precise moment the machine registers an adequate sample. The state is required only to show that the directions of the legislature are followed.
II. Substantive and Procedural Due Process
Rader challenges the method used by the police officer during the testing process, arguing that it violated his substantive and procedural due process rights. Rader contends that breath tests are not administered fairly because each driver is tested by a different officer and each officer requires differing amounts of breath to be measured by the breathalyzer. The due process arguments presented by Rad-er were specifically rejected in Brooks.
In Brooks, the drivers argued that their state and federal procedural due process rights were violated because the method allowed suspected intoxicated drivers to be treated differently from each other — an officer administering the test might stop some subjects at the moment an adequate breath sample was obtained while requiring'other subjects to continue blowing past that point. 584 N.W.2d at 19-20. The court held that the drivers failed to prove officers manipulated the tests. Id. at 20. The court held there were no substantive or procedural due process violations because the drivers “failed to show a direct and personal harm resulting from the alleged denial of constitutional rights.” Id. at 19 (citation omitted).
In the present case, Rader presented no evidence that the officer manipulated the test or that he purposefully treated Rader differently than he treated other drivers. Because Rader failed to show any intended, direct, and personal harm from the alleged denial of his constitutional rights, we conclude that neither his substantive nor procedural due process rights were violated by the testing method used by the police officer.
III. Destruction of Evidence
Lastly, Rader presents a Brady challenge, arguing that the testing method used by the officer destroyed evidence. See Brady v. Maryland, 378 U.S. 83, 87, [325]*32583 S.Ct. 1194, 1196-97, 10 L.Ed.2d 215 (1963) (holding suppression of material evidence by prosecution violates due process rights); State v. Schmid, 487 N.W.2d 539, 541 (Minn.App.1992) (holding due process clause prohibits destruction of material exculpatory evidence), revieiu denied (Minn. Sept. 15, 1992). This issue was not presented to the district court. A reviewing court need not address constitutional issues raised for the first time on appeal. State v. Sorenson, 441 N.W.2d 455, 457 (Minn.1989). Because Rader failed to raise his Brady challenge in the district court, it is not properly preserved on appeal.
But a court may, in its discretion, decide to hear such issues when it is in the interests of justice and would not work an unfair surprise on a party. Id. Even though the issue is not properly before us, we conclude Rader cannot prevail because he failed to present any evidence indicating that the officer intentionally destroyed evidence, that the allegedly destroyed evidence was favorable to him, or that the exculpatory value of the evidence was apparent and material. See State v. Friend, 493 N.W.2d 540, 545 (Minn.1992) (for claim of lost or destroyed evidence to be reversible error, defendant must show destruction was intentional and exculpatory value of evidence was apparent and material).
DECISION
The state is not required to prove that a defendant’s alcohol concentration reading is .10 or more at the precise moment the Intoxilyzer indicates that it has received an adequate test sample. A driver’s substantive and procedural due process rights are not violated when a police officer has the driver continue to blow into the Intoxi-lyzer after the machine indicates an adequate sample has been provided. An issue not presented to the district court will not be considered for the first time on appeal even if it involves an alleged violation of defendant’s constitutional rights.
Affirmed.