State v. Horning , 535 N.W.2d 296 ( 1995 )

OPINION

GARDEBRING, Justice.

Appellant Douglas Horning was convicted of driving with a blood alcohol concentration of 0.10 or more in violation of Minn.Stat. § 169.121, subd. 1(d) (1992). The issue on appeal is whether, in a prosecution for driving with a blood alcohol concentration of 0.10 or more, the trial court erred in excluding evidence regarding Horning’s “lack of impairment” prior to the administration of the Intoxilyzer test. The court of appeals affirmed the trial court, holding that the exclusion of lack of impairment evidence was not an abuse of discretion. We affirm because such evidence is not relevant to a crime based solely on blood alcohol content.

Horning’s conviction arises out of a motor vehicle accident occurring on March 5, 1992 in Stearns County. On that evening, Horn-ing left his home in St. Paul at approximately 6:00 p.m. to drive to Alexandria, Minnesota. He testified he stopped in Champlin, Minnesota where he drank one “screwdriver” before leaving at 7:30 p.m. Shortly before 9:00 p.m., Horning was involved in a collision with a semi-truck while driving on Interstate 94 near Melrose, Minnesota. Although Horning believed that he was struck from behind by another automobile, the cause of the accident is unclear.¹

The testimony at trial was conflicting as to the events immediately following the collision. According to Horning, he was approached by the driver of the truck that collided with Horning’s car, and they talked briefly about the condition of the car. Then, while the truck driver walked back to his truck to see if someone had called for the state patrol, an unidentified passerby approached Horning and offered him a brown paper bag with one 40-ounce bottle of malt liquor and “four or five other assorted beers.” Horning testified that over the next ten minutes he drank the bottle of malt liquor and two or three cans of beer from the bag, and when the truck driver returned, “threw the bag into the ditch, like behind the car.”

In contrast to Horning’s testimony, the truck driver testified that he and Horning waited in the cab of his truck for the state patrol to arrive and that from the time he first spoke with Horning, Horning was never out of his sight. He further testified that Horning drank one cup of coffee after the accident, but he did not observe Horning drinking anything else.

A state patrol trooper arrived approximately 40 minutes after the accident. After preparing an accident report, the trooper drove Horning to Melrose where Horning’s car had been towed and then to Sauk Centre where he was to be picked up and taken to Alexandria. Before Horning exited the trooper’s car at Sauk Centre, the trooper administered a portable breath test which after 20 seconds indicated “fail.” The trooper then took Horning to the police station in Sauk Centre where he administered an In-toxilyzer test.

In regard to Horning’s Intoxilyzer test, the trooper testified that he is a certified Intoxi-lyzer operator, he operated the Intoxilyzer properly, and he waited the requisite observation time before starting the test. Horn-ing’s reported value at 11:18 p.m. was a blood alcohol concentration of 0.15. The trooper further testified that he interviewed Horning immediately following the Intoxilyzer test and recorded his responses on a standard interview form. According to the trooper, Horning answered “no” when asked whether he had anything to drink since the accident, and stated “Nyquil and cough medicine” when asked whether he had consumed alcohol other than at Champlin within the previous 24 hours.²

In addition, the state called an expert witness who testified that, based on his observation of the test record and the maintenance records, the Intoxilyzer instrument used to test Horning was in proper functioning order and provided an accurate and reliable record of the blood alcohol concentration level in Horning’s breath. The expert also estimated Horning’s blood alcohol concentration level at the time of the accident by taking the 11:18 p.m. result of 0.15 and extrapolating back to 9:00 p.m. by applying an average elimination rate of 0.016 alcohol concentration per hour. Based on this extrapolation method, the expert estimated Horning had a 0.188 to 0.193 blood alcohol concentration at approximately 9:00 p.m.

After hearing the testimony of the state’s fact witnesses, the trial court granted the state’s motion in limine to limit testimony to evidence relating to Horning’s blood alcohol concentration and to exclude any evidence regarding whether Horning appeared to be under the influence of alcohol. Specifically, Horning sought to introduce evidence showing his conduct at the time of the accident was inconsistent with the Intoxilyzer test result of 0.15 and with the extrapolated estimate of 0.188 to 0.193 blood alcohol concentration. Horning also sought to question the state’s expert witness about the Bureau of Criminal Apprehension Intoxilyzer training manual, which indicates a person with an alcohol concentration of 0.18 would show clinical signs of intoxication. Moreover, although he was permitted to assert the affirmative defense of post-driving consumption of alcohol, Horning wanted to offer lack of impairment evidence to support this defense. As a result of the court’s ruling, Horning was prevented from introducing this evidence.

Although Horning initially was charged with one count of driving under the influence of alcohol and one count of driving with an alcohol concentration of 0.10 or more, the state dismissed the former charge and added one count of having an alcohol concentration of 0.10 or more as measured within two hours of driving. Horning was convicted of driving with an alcohol concentration of 0.10 or more and acquitted of the charge of having an alcohol concentration of 0.10 or more as measured within two hours of driving. The court of appeals affirmed the conviction, finding that, because lack of impairment evidence is irrelevant to a charge of driving with an alcohol concentration of 0.10 or more, the exclusion of such evidence was not an abuse of discretion. On appeal, Horning urges this court to find that the trial court improperly excluded relevant, circumstantial evidence when it granted the state’s motion to exclude lack of impairment evidence.

Rulings involving the relevancy of evidence are generally left to the sound discretion of the trial court. State v. Ture, 353 N.W.2d 502, 515 (Minn.1984). The party claiming error has the burden of showing both the error and the resulting prejudice. State v. Loebach, 310 N.W.2d 58, 64 (Minn.1981). The basic requisite for the admissibility of any evidence is that it be competent and relevant. See Minn.R.Evid. 402. The threshold determination of relevance turns on whether the evidence logically or reasonably tends to prove or disprove a material fact in issue, or tends to make such a fact more or less probable, or affords the basis for or supports a reasonable inference or presumption regarding the existence of a material fact. Minn.R.Evid. 401, committee comment.

Looking at the definition of the crime at issue here, it seems clear that lack of impairment evidence is not relevant to the proof or disproof of a violation of Minn.Stat. § 169.121, subd. 1(d):

Subd. 1. Crime. It is a crime for any person to drive, operate, or be in physical control of any motor vehicle within this state:

[[Image here]]

(d) when the person’s alcohol concentration is 0.10 or more;

[[Image here]]

In order for the state to sustain a conviction under subd. 1(d) there must be proof beyond a reasonable doubt of only two facts: that the defendant was operating a vehicle within this state and that at that time his/her alcohol concentration was .10 or more. Thus, proof of a violation of subd. 1(d) involves a narrowly focused inquiry directed solely to a determination of whether a defendant had a .10 or greater blood alcohol level at the time of driving. The only evidence relevant to this inquiry is related to: (1) whether the defendant was driving, a matter not contested in this case, and (2) the chemical testing which determines blood alcohol concentrations.

In the face of information that a defendant did not weave when he drove, that he did not slur his speech, that he did not walk unsteadily, one might ask: so what? While that information might help a factfinder determine whether a defendant was guilty of the crime of driving under the influence, a violation of Minn.Stat. § 169.121, subd. 1(a) (1994), it has no bearing on the critical question here — what was appellant’s blood chemistry? ³ Whether appellant’s consumption of alcohol visibly impaired his driving is not at issue. Lack of impairment evidence does not logically or reasonably tend to prove or disprove appellant’s blood alcohol level, nor does it tend to make such a fact more or less probable, nor does it afford a basis for a reasonable inference or presumption regarding whether his blood alcohol level was .10 or greater. As a result, evidence of appellant’s lack of impairment is simply not relevant to a subd. 1(d) charge.⁴

Our concern is not that the lack of impairment evidence is unreliable. It is true that we have previously noted the limited value of visible evidence of intoxication. In State v. Graham, we said, “[although he can walk straight, although he may attend to his business, and may not give any outward and visible signs to the casual observer that he is drunk,” a person may still be under the influence. 176 Minn. 164, 168, 222 N.W. 909, 911 (1929). This is precisely why the legislature chose to create a “drunk driving” violation which does not depend on the outward manifestations of intoxication. Here, the reliability of the lack of impairment evidence is not at issue, only its relevance to the task at hand, determining a specific parameter of blood chemistry.

Furthermore, we believe that the powerful public policy statement of our drunk driving laws militates against admission of lack of impairment evidence in prosecutions for violation of the blood alcohol limitation.⁵ The overall statutory scheme involving drunk driving which the legislature has crafted carefully over a period of years includes a number of separately defined crimes. Under this scheme, drunk drivers may be prosecuted for a number of specific illegal acts, including:

(1) operating a vehicle while under the influence of alcohol, under Minn.Stat. § 169.121, subd. 1(a);

(2) operating a vehicle with a blood alcohol concentration of 0.10 or more, under Minn. Stat. § 169.121, subd. 1(d), which is at issue here, and

(3) operating a vehicle with a blood alcohol concentration of 0.10 measured within two hours of the time of driving, under Minn. Stat. § 169.121, subd. 1(e) (1994).

Each of these specifically enumerated crimes, which was enacted into law at a different time, is directed at impaired driving or driving ability, evidenced in different ways. If the crime described in subd. 1(a)— driving while under the influence of alcohol— defined all risky behavior, there would be no need for the other provisions; but it does not, and there is a need for them, simply because not all drunk drivers manifest impairment visible to the arresting officer.

Finally, this court has specifically recognized that laws prohibiting a person from driving a motor vehicle while intoxicated are remedial statutes, and are to be “liberally interpreted in favor of the public interest and against the private interests of the drivers involved.” State, Dept. of Public Safety v. Juncewski, 308 N.W.2d 316, 319 (Minn.1981). We have said that the legislature has demonstrated its intent to have this statute cover “the broadest possible range of conduct” and to be given “the broadest possible effect.” Id. Indeed, by creating both an offense of driving under the influence of alcohol, subd. 1(a), and an offense of driving with an alcohol concentration of 0.10 or more, the statute reflects an intent to create as effective and encompassing a remedy as possible to eradicate drunk driving from our streets and highways. To allow the admission of lack of impairment evidence on a charge of driving with an alcohol concentration of 0.10 or more would undermine that broad and encompassing remedy which the legislature has mandated. We conclude that there was no abuse of discretion in the trial court’s decision to exclude the lack of impairment evidence, and the decision of the court of appeals is affirmed.

1 . The state trooper who investigated the accident site testified he examined Horning’s car and did not notice any damage to the back end of the car.

2 . Horning disagreed with the trooper's account of the interview. He testified that, following the test, the trooper asked whether he had anything to drink since the arrest and Horning responded "no." Horning also recalled the trooper asking him whether he had anything to drink since the accident, to which Horning responded he did.

3 . The concurrence asserts that we have failed to focus on “when Horning’s blood chemistry is relevant." However, that begs the question of whether lack of impairment evidence is relevant to a violation of law based on blood chemistry, whenever measured.

4 . The concurrence agrees that the impairment evidence is irrelevant to the state's burden because it has no bearing on Horning’s actual alcohol concentration, but argues that it is relevant as rebuttal. To this we can only respond again, if the only element of the crime at issue is blood alcohol concentration, how can behavior be relevant, even on rebuttal?

5 . The legislature’s intent to eradicate drunk driving is repeatedly evidenced in a host of statutory amendments. For example, in 1988, a provision was added to impose mandatory penalties for habitual DWI offenders. See 1988 Minn.Laws ch. 408 § 1, currently codified at Minn.Stat. § 169.121, subd. 3(a) (1994). Similarly, in 1993, the clause providing that an alcohol concentration of 0.05 or less is prima facie evidence that a person was not under the influence of alcohol at the time, was changed to provide that an alcohol concentration of 0.04 is relevant evidence as to whether a person was under the influence. Minn.Laws ch. 347 § 4, currently codified at Minn.Stat. § 169.121, subd. 2 (1994). Finally, in 1978, the legislature broadened the scope of the statute by deleting "actual” physical control, thus, a person can violate the statute without actually driving a vehicle. See 1978 Minn.Laws ch. 727 § 2, currently codified at Minn. § 169.121, subd. 1 (1994); see also State, Dept. of Public Safety v. Juncewski, 308 N.W.2d 316, 319-20 (Minn.1981) (holding car engine need not be running to violate Minn.Stat. § 169.121, subd. 1(a) (1980)).