State of Minnesota, Respondent,

STATE OF MINNESOTA
IN COURT OF APPEALS
A16-2058

State of Minnesota,
Respondent,

vs.

Daniel Patrick Brazil,
Appellant.

Filed December 26, 2017
Affirmed
Rodenberg, Judge

Hennepin County District Court
File No. 27-CR-16-2585

Lori Swanson, Attorney General, St. Paul, Minnesota; and

Susan L. Segal, Minneapolis City Attorney, David Bernstei n, Assistant City Attorney,
Minneapolis, Minnesota (for respondent)

Charles A. Ramsay, Daniel J. Koewler, Ramsay Law Firm, P.L.L.C., Roseville, Minnesota
(for appellant)

Considered and decided by Worke, Presid ing Judge; Rodenberg, Judge; and Reilly,
Judge.
S Y L L A B U S
A DataMaster breath-test result is direct evidence of the alcohol concentration in a
person’s body, and a conviction based on such a result and report is reviewed under the
traditional direct-evidence analysis.

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O P I N I O N
RODENBERG, Judge
Appellant Daniel Patrick Brazil, convicte d of third-degree dr iving while impaired
(DWI), challenges the sufficiency of the evid ence supporting his conviction, arguing that
a DataMaster test (DMT) result is circumst antial evidence of alcohol concentration and
that there are rational inferences from the circumstances proved that are inconsistent with
his guilt. We hold that a DMT result is direct evidence of alcohol concentration and affirm
appellant’s conviction under a traditional sufficiency-of-direct-evidence analysis.
FACTS
Appellant was arrested on November 8, 2015, after he crashed his car into another
car. Appellant consented to a breath test, and the DMT device measured and reported
appellant’s alcohol concentration as 0.16. Appellant was charged with two counts of third-
degree DWI under Minn. Stat. § 169A.20, subds. 1(1) and 1(5), with reference to Minn.
Stat. § 169A.26 (2014) (including the aggrava ting factor of an alcohol concentration of
0.16 or more pursuant to Minn. Stat. § 169A .03, subd. 3(2) (Supp. 2015)). Appellant
waived his right to a jury trial, and admitte d under oath that he drank enough alcohol to
affect his ability to safely drive a motor vehicle before he drove and crashed his car into a
parked car. He also admitted that his alcohol concentration was 0.08 or more as measured
within two hours of driving. Appellant deni ed that his alcohol concentration was 0.16 or
more, an element necessary to the gross-misdemeanor charges. That element was tried to
the court.

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The parties stipulated to the following facts at trial: (1) appellant declined to submit
to any field sobriety testing; (2) appellant was not wearing perfume and had not used hand
sanitizer or hair spray on the day of th e incident; (3) appellant did not notify law
enforcement of any health conditions; (3) appellant was observed by police officers for 15
minutes before he provided a breath sample for the DMT and did not burp, belch, or vomit
during that time; (4) Trooper Ben Olson, a certified DMT operator, properly administered
the test; and (5) the DMT results could be admitted into evidence. The only issue for trial
was whether the DMT results were sufficient to support the aggravating element of an
alcohol concentration of 0.16 or more.
The state presented testimony from Karin Ki erzek, a forensic sc ientist with the
Minnesota Bureau of Criminal Apprehension (BCA). Kierzek tes tified that every DMT
device in use in Minnesota co mes to the BCA’s lab annua lly for maintenance checks,
calibration, and certification. All machines must provide results w ithin the acceptable
0.003 or 3% margin of error in order to pass calibration. Kierzek also testified that DMT
devices have a number of internal and external checks to ensure accu racy. These checks
begin with having a trained operator administer the test. The operator observes the subject
for at least 15 minutes to verify that the subject is not introducing mouth alcohol by
burping, belching, or regurgitating. The DM T device tests itself by running a diagnostic
test, which includes using air blanks to clear the sample chamber and ensure that there is
no residual alcohol or measurable alcohol in the air surrounding the machine. The subject
then provides two breath samples a minimum of three minutes apart to safeguard against
measuring mouth alcohol, and a control sample runs between the two breath samples to

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determine if the instrument is working properly when it evaluates a known alcohol
concentration. If the two breath samples fro m the subject are not comparable, the test
results are deemed insufficiently reliable and retesting is suggested.
The DMT results showed that the DMT device used to test appellant’s alcohol
concentration went through the full sequence of checks and passed all of them. There is
no indication of irregularity or malfunction. The air blanks produced readings of zero,
meaning that the sample chamber was clear of alcohol. Appellant’s first breath sample
revealed an alcohol concentration of 0.164. The machine ran another air blank and a
control sample with a target of 0.078, which produced a result of 0.077. Kierzek testified
that the control sample reading was only 0. 001 different than the known sample, which
variance she testified was insignificant and meant that the machine was measuring alcohol
accurately within tolerable limits. After the control-sample test, the machine ran another
air blank, which again tested zero, and then appellant provided a second breath sample,
which resulted in an alcohol concentration measurement of 0.175. One final air blank was
run to clear the sample chamber and check the room air for any measurable alcohol. It also
tested zero. Kierzek testified that appellant ’s final alcohol concentration was determined
by taking the lower of the two reported sample results, 0.164, and dropping the third digit
to reach a reported value of 0.16. This method of reporting “give[s] the most benefit to the
subject,” according to Kierzek’s testimony. Based on her review, Kierzek opined that
appellant’s breath-test results were accurate.
Kierzek also testified that “[t]here is no perfect measurement” and no measurement
can ever be absolutely accurate. She testified that there is an uncertainty-of-measurement

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range within which the tester could have confidence that a high percentage of results would
fall. Factors that contribute to the uncertain ty of measurement include the area in which
the tests are performed, the instructions gi ven by an operator, whether the subject is
wearing cologne, and whether the subject has certain medical conditions. She testified that
the uncertainty-of-measurement value “merely gives you a range of what you would expect
to see given repeated samplings.” For appellant’s test in particular, Kierzek testified that,
at the 99% confidence interval , the expected range of test results would be 0.1504 to
0.1886. The average from appellant’s two br eath-test results was 0.1695, and Kierzek
testified that this is the “most likely result, ” and that repeated te st results “would be
symmetric around that point.” She also agreed that, had appellant’s breath been tested a
third time, it could have fallen anywhere within the confidence interval that she identified,
from 0.1504 to 0.1886, and agreed that a third test falling anywhere within that range is “a
distinct possibility” that is not arbitrary or capricious. Appellant’s counsel asked Kierzek
whether she could “say that if [appellant’s breath] was measured a third time . . . [the result]
would be a .18 or if it woul d be a .15 . . . [w]ithout speculating,” to which Kierzek
responded no.
Thomas Burr, a self-employed forensic-science consultant, testified for appellant.
He testified that a “measurement is an estim ate of [a] true value” and that a measurement
is only complete if it is accompanied by a statement about the uncertainty of measurement.
Burr admitted that he is not a DMT expert, and that he does not have any experience
operating a DMT device, aside from a training he attended at a DataMaster manufacturing
plant, which certified him to operate and run diagnostics on DMT devices. He agreed that

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the air blanks from appellant’s testing helped to establish that the device was working
properly and that the control sample and contro l target were within acceptable limits. He
agreed that he had no reason to believe the DMT device was not operating properly when
appellant took the tests. He testified to the effect that he could not say without speculation,
based on the available breath-test records, whether appellant’s alcohol concentration was
0.16 or more.
The district court found as a fact that appellant’s alcohol content was at least 0.16.
It therefore found him guilty of the two charged gross-misdemeanor counts of third-degree
DWI. In reaching this conclusion, the district court relied on Kierzek’s testimony that the
DMT device, operating properly, produced a final result of 0.16.
This appeal followed.
ISSUES
I. Is a DMT result direct evidence of the test subject’s alcohol concentration?
II. Is there sufficient evidence in the record to support appellant’s convictions?
ANALYSIS
I. A breath-test result is direct evidence of a person’s alcohol concentration.
Appellant argues that the DMT’s measurem ent is circumstantial evidence of his
alcohol concentration because it is impossible to know his true alcohol concentration.
Therefore, he argues, the circumstantial-evidence review standard applies and the evidence
will be considered sufficient to support appellant’s conviction only if the state has proven
the absence of any rational inference inconsistent with guilt. See State v. Al-Nasseer, 788

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N.W.2d 469, 473 (Minn. 2010) (specifying the appellate standard of review for appeals
challenging the sufficiency of circumstantial evidence).
“Direct evidence is [e]vidence that is based on pers onal knowledge or observation
and that, if true, proves a fact without inference or presumption.” Bernhardt v. State, 684
N.W.2d 465, 477 n.11 (Minn. 2004) (quotation omitted). Such evidence can be provided
in the form of testimony by a person who perceived the fact through her senses or physical
evidence of the fact itself. State v. Williams , 337 N.W.2d 387, 389 (Minn. 1983). In
contrast, circumstantial evidence is “evidence from which the factfinder can infer whether
the facts in dispute existed or did not exist.” State v. Harris, 895 N.W.2d 592, 599 (Minn.
2017) (quotation omitted). “[C]ircumstantial evidence always requires an inferential step
to prove a fact that is not required with direct evidence.” Id.
Whether a DMT result is direct evidence of a person’s alcohol concentration is an
issue of first impression. Our decision in State v. Hughes, 355 N.W.2d 500 (Minn. App.
1984), provides some guidance. Hughes involved a challenge to the sufficiency of the
evidence in a DWI prosecution that relied on a blood test for alcohol. 355 N.W.2d 500,
502 (Minn. App. 1984), review denied (Minn. Jan. 2, 1985). We applied the circumstantial-
evidence standard when revi ewing whether the evidence sufficiently proved that the
defendant was the driver of the car. Id. But in our review of the sufficiency of the evidence
concerning blood-alcohol concentration,1 we characterized the blood-test results as “direct

1 At the time Hughes was decided, Minnesota law used the term “blood alcohol
concentration,” and 0.10 was the statutory limit. See, e.g., Minn. stat. § 169A.20, subd.
1(5) (2002); Hughes, 355 N.W.2d 500. The version of th e statute in effect at the time of
the offense here prohibits having an alcohol concentration of 0.08 or more, Minn. Stat. §

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evidence.” Id. We held that “[t]his direct evidence, together with rational inferences from
circumstantial evidence,” suffi ced to prove the driver’s blood alcohol concentration was
over the statutory limit. Id.
Appellant argues that, while the DMT result does contain a reported number
representing his alcohol concentration, the factfinder necessarily relies on inference in
determining whether that number accurately re flects his true alcohol concentration.
Appellant argues that, because the factfinder must infer the subject’s actual alcohol
concentration from the DMT reported result, the reported result is not direct evidence.
Testimony provided by a witness, concerni ng what the witness saw or heard, is
considered direct evidence. Williams, 337 N.W.2d at 389. Su ch evidence “is based on
personal knowledge or observation and . . . if true, proves a fact without inference or
presumption.” Harris, 895 N.W.2d at 599 (quoting State v. Clark, 739 N.W.2d 412, 421
n.4 (Minn. 2007)). But even with eyewitness testimony, the factfinder must make some
inferences in considering the testimony, such as whether the witness’s memory is accurate,
whether the witness accurately perceived the s ubject of the testimon y, and even whether
the witness is telling the truth. That some inference is required for the factfinder to interpret
the evidence does not render otherwise direct evidence circumstantial. Evidence is direct
when it directly addresses the fact in dispute. Williams, 337 N.W.2d at 389. Evidence is
circumstantial when it does not directly address the fact in dispute and proof of the fact in
dispute requires an additional inference from the evidence. Id.

169A.20, subd. 1(5) (2014), with an alcohol concentration of 0.16 or more being
considered an aggravating factor, Minn. Stat. § 169A.03, subd. 3(2).

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Here, the fact in dispute is appellant’s alcohol concentration. The DMT device,
operated by an appropriately credentialed po lice officer, measured appellant’s alcohol
concentration by breath testing and reported the results of that measurement. The end result
was a reported alcohol concentration. The DM T printout is a report of the measurement
and directly addresses the question of appellant’s alcohol concentration.
While no measurement is perfect, that doe s not mean that a ll measurements are
circumstantial evidence. If a person uses a ruler to measure the le ngth of a thing, the
measurement is direct evidence of length. If a person us es a caliper to measure the
thickness of a thing, the measurement is direct evidence of thickness. That a measurement
is imperfect does not render it a mere circumst ance. We hold that a DMT result is direct
evidence of a person’s alcohol concentration.
II. The record evidence is sufficient to support appellant’s convictions.
Having concluded that the DMT-reported result is direct evidence of appellant’s
alcohol concentration, we next evaluate whether the record evidence is sufficient to prove
beyond a reasonable doubt that appellant’s alcohol concentration was 0.16 or more.
Appellant argues that the evidence is no t sufficient, because the uncertainty-of-
measurement range includes values below 0.16, meaning that some tests of appellant’s
breath—if enough were done—would be expected to fall below 0.16.
In considering the sufficiency of the evidence supporting a conviction, we
thoroughly analyze the record “to determine whether the evidence, when viewed in a light
most favorable to the convicti on, was sufficient to permit th e [factfinder] to reach the
verdict which [it] did.” State v. Webb , 440 N.W.2d 426, 430 (Minn. 1989). We must

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assume that the factfinder “believed the state’s witnesses and disbelieved any evidence to
the contrary.” State v. Moore, 438 N.W.2d 101, 108 (Minn. 1989). “We will not disturb
the verdict if the [factfinder], acting with due regard for the presumption of innocence and
for the necessity of overcoming it by proof beyond a reasonable doubt, could reasonably
conclude that” the defendant was guilty of the charged offense. Bernhardt v. State, 684
N.W.2d 465, 476-77 (Minn. 2004). We have referred to this as the “traditional standard of
review.” State v. Olson, 887 N.W.2d 692, 700 (Minn. App. 2016).
The district court received a DMT pr intout, reporting the results of two
measurements of appellant’s breath as an alcohol concentration of 0.16. Appellant agrees
that the test was administered correctly and that the DMT device functioned properly. The
district court received no eviden ce that the test result was in correct. The record contains
no measurement of appellant’s alcohol concen tration lower than 0. 16. While appellant
argues that the state is required to prove his alcohol concentration within the uncertainty-
of-measurement range, our case law has consistently rejected this argument when framed
in terms of margin of error. See Barna v. Comm’r of Pub. Safety , 508 N.W.2d 220, 222
(Minn. App. 1993) (“[T]he implied consent statute does not require that the margin of error
be considered.”); Loxtercamp v. Comm’r of Pub. Safety, 383 N.W.2d 335, 336-37 (Minn.
App. 1986) (discussing that the implied- consent statute does not require alcohol
concentration to be proved “within an alleged margin for potential error”), review denied
(Minn. May 22, 1986); Dixon v. Comm’r of Pub. Safety, 372 N.W.2d 785, 786 (Minn. App.
1985) (same). While these earlier decisions we re made in the context of implied-consent
cases, they hold that the proponent of a breath test need not prove the measurement to have

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been absolutely and precisely correct. The proponent must show that “the necessary steps
have been taken to ensure reliability,” and after that “it is incumbent on the driver to suggest
a reason why the [breath] test was untrustworthy.” State v. Nelson, 399 N.W.2d 629, 632
(Minn. App. 1987), review denied (Minn. Apr. 17, 1987) (citing State v. Dille, 258 N.W.2d
565, 568 (Minn. 1977)). Here, the parties agre ed that the test was administered correctly
by a qualified DMT operator, and there was no mouth alcohol that rendered the test result
suspect. The district court accepted the test result as adequate proof of appellant’s alcohol
concentration. It did so despite testimony that it is possible that a third test of appellant’s
breath might have revealed a reported result u nder 0.16. The record supports the district
court’s factual finding concerning appellant’s alcohol concentration. The evidence is
sufficient to support appellant’s conviction of third-degree DWI.
D E C I S I O N
A DMT result is direct evidence of a subjec t’s alcohol concentration. Applying the
direct-evidence standard of review to the re cord before us on appeal, the evidence is
sufficient to support the district court’s finding that appellant’s alcohol concentration was
0.16 or more.
Affirmed.