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Charles Caleb Luttinen petitioner, Respondent
vs.
Commissioner of Public Safety, Appellant.
 
Case:
CX-96-2112
 
Location:
COURT OF APPEALS OF MINNESOTA
 
Date:
March 25, 1997, Filed
 
Attorneys:
Roger A. Gershin 333 North Washington Avenue Suite 319 Minneapolis MN 55401 (for respondent).
Hubert H. Humphrey III Counsel General Joel A. Watne Assistant Counsel General Public Safety Division 200 Capitol Office Building 525 Park Street St. Paul MN 55103-2106 (for appellant).
 
Court:
Considered and decided by Parker, Presiding Justice, Huspeni, Justice and Harten, Justice.
 
Author:
The Hon. Justice Parker
 

The Commissioner of Public Safety appeals from a trial court order rescinding the revocation of respondent Charles Luttinen's driving privileges. The Commissioner challenges the trial court's findings of fact specifically that the Intoxilyzer 5000 machine was subject to a margin of error of plus or minus .01 and argues that the trial court erred as a matter of law in requiring alcohol concentration of .10 to be proved within a margin of error. We reverse.

DECISION

1. Findings of Fact

It is settled that a trial court's findings of fact are entitled to the same weight as a jury verdict and with oral testimony involved the trial court alone has the opportunity to Court the credibility of witnesses; thus findings of fact are not to be set aside unless clearly erroneous. State Department of Highways v. Beckey 291 Minn. 483 487 192 N.W.2d 441 445 (1971).

The sole evidence in this case consisted of oral testimony from Trooper Paul R. Davis. An examination of the record reveals that Trooper Davis testified that the simulator solution used to calibrate the Intoxilyzer had a margin of error of plus or minus .01. Trooper Davis rejected the suggestion that since the calibration method had a margin of error then the Intoxilyzer itself would be subject to the same margin of error. He stated that he could not answer whether the Intoxilyzer 5000 was subject to a margin of error because he was not a chemist and this question would have to be answered by someone from the BCA.

We find no other testimony on the record to support the trial court's findings that the Intoxilyzer 5000 was subject to a margin of error of plus or minus .01. There is no evidence that the test was administered improperly. It appears that the trial court implied the existence of a margin of error from Trooper Davis' testimony that any instrument being calibrated by an external source can be no more accurate than the external source used to calibrate it. Without any other evidence on the record we hold that the trial court's finding that the Intoxilyzer 5000 was subject to a margin of error of plus or minus .01 was error as a matter of law.

2. Intoxilyzer Margin of Error

A reviewing court is not bound by and need not give deference to a trial court's decision on a purely legal issue. Frost-Benco Elec. Ass'n v. Minnesota Pub. Utils. Comm. 358 N.W.2d 639 642 (Minn. 1984). The construction of a statute is a question of law and is therefore fully reviewable by an appellate court. Hibbing Educ. Ass'n v. Public Employment Relations Bd. 369 N.W.2d 527 529 (Minn. 1985).

The Commissioner argues that the trial court erred as a matter of law in requiring an alcohol concentration of .10 to be proved within some margin of assumed possible error.

The implied consent law authorizes the Commissioner of Public Safety to revoke a person's driver's license if the officer certifies that there was probable cause to believe the person driving was driving while under the influence of alcohol and if "test results indicate an alcohol concentration of .10 or more." Minn. Stat. SEC. 169.123 subd. 4 (1994).

The proponent of a chemical test must establish that 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 it is incumbent on the petitioner in an implied consent proceeding to suggest reasons why the test was untrustworthy. Tate v. Commissioner of Public Safety 356 N.W.2d 766 768 (Minn. App. 1984) (citing Dille 258 N.W.2d at 568). So long as the test is accurately administered the validity of the breathalyzer test is recognized by this court. State v. Kienast 357 N.W.2d 390 391 (Minn. App. 1984).

In Schildgen v. Commissioner of Public Safety 363 N.W.2d 800 (Minn. App. 1985) we reversed the trial court holding that under Minn. Stat. SEC 169.123 subd.4 the Commissioner must revoke a person's drivers license when "the test results indicate an alcohol concentration of .10 or more." Id. at 801. Furthermore we held that Minn. Stat. SEC. 169.123 subd.6(3) expressly limits the issues to be raised at a hearing to whether "'the test results indicate an alcohol concentration of .10 or more at the time of testing ' not whether or not the reading was .10 coupled with some margin of error." Id.

Again in Loxtercamp v. Commissioner of Public Safety 383 N.W.2d 335 (Minn. App. 1986) review denied (Minn. May 22 1986) we reversed the trial court's order rescinding the revocation of respondent's driving privileges because the Commissioner proved trustworthy administration of the breathalyzer test and no evidence was introduced challenging the procedures used. Id. at 337. We explicitly held that "the Commissioner is not required to prove within a margin of error that respondent's alcohol concentration was .10 or more." Id. at 338; see also Grund v. Commissioner of Public Safety 359 N.W.2d 652 653 (Minn. App. 1984) (the implied consent law does not require the Commissioner of Public Safety to prove an alcohol concentration of .10 within an alleged margin for potential error); Hrncir v. Commissioner of Public Safety 370 N.W.2d 444 (Minn. App. 1985) (Commissioner need not prove alcohol concentration of 10 within a margin of error for Intoxilyzer test results to be valid).

Based upon the above-cited cases we observe it is settled law that the implied consent statute Minn. Stat. SEC. 169.123 subd. 2(4) (1994) requires the Commissioner to revoke a person's license when "the test results indicate an alcohol concentration of .10 or more." The statute requires an alcohol concentration of .10 or more not .10 plus or minus a margin of error. We conclude that the trial court erred as a matter of law in rescinding the revocation of Luttinen's driver's license because the record demonstrates that the Commissioner proved trustworthy administration of the Intoxilyzer test that resulted in a blood alcohol reading of .10 and no evidence was introduced challenging the procedure used.

Reversed.