John Joseph Vondrachek, petitioner, Appellant,

STATE OF MINNESOTA
IN COURT OF APPEALS
A17-0462

John Joseph Vondrachek, petitioner,
Appellant,

vs.

Commissioner of Public Safety,
Respondent.

Filed December 18, 2017
Affirmed
Rodenberg, Judge

Washington County District Court
File No. 82-CV-16-3402

Jeffrey S. Sheridan, Sheridan & Dulas, P.A., Eagan, Minnesota (for appellant)

Lori Swanson, Attorney General, Maria N. Zaloker, Assistant Attorney General, St. Paul,
Minnesota (for respondent)

Considered and decided by Florey, Presiding Judge; R odenberg, Judge; and Kirk,
Judge.
S Y L L A B U S
A driver’s Fourth Amendment rights are not violated when a police officer, acting
on reasonable suspicion of impaired driving, asks the driver of a lawfully stopped motor
vehicle to exit and perform roadside field sobriety tests.
O P I N I O N
RODENBERG, Judge
Appellant John Joseph Vondrachek appeals from the district court’s order sustaining
the revocation of his driver’s license under Minn. Stat. §§ 169A.50 to .53 (2014), arguing

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that (1) the officer lacked probable cause to arrest him because the roadside sobriety tests
and preliminary breath test were imperm issible warrantless searches; and (2) the
DataMaster breath-test result lacked a reliable foundational basis and should not have been
admitted into evidence. We affirm.
FACTS
On July 24, 2016, at approximately 2:00 a.m., Officer John Miller of the Bayport
Police Department was on patrol and stopped a car that was traveling 61 miles per hour in
a posted 40-miles-per-hour speed zone. Officer Miller approached the car and spoke to the
driver through the car window. He identifie d the driver as appellant from his driver’s
license. While speaking with appellant, Officer Miller “detected a strong odor of alcohol”
on appellant’s breath. When asked, appellant said that he had two alcoholic drinks before
driving. Suspecting that appellant was drivi ng under the influence of alcohol, but unsure
of that, Officer Miller decided to investigate further.
Officer Miller told appellant that he was “j ust going to have [him] step out real quick
to make sure [he was] okay to be driving tonight,” intending to conduct roadside sobriety
testing. After appellant got out of his car , Officer Miller had appellant complete the
horizontal gaze nystagmus test. During this test, Officer Miller said he “observed lack of
smooth pursuit in both right and left eye [a]n d nystagmus at maximum deviation at both
left and right eye.” These observations indica ted that appellant was impaired by alcohol.
Next, Officer Miller explaine d and demonstrated the nine -step walk-and-turn test.
Appellant indicated that he understood th e test and performed it without signs of
impairment. Finally, Officer Miller explained the one-legged-stand test to appellant, who

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indicated that he understood the test. When appellant performed this test, Officer Miller
noticed that appellant “used his arms for balance and swayed while balancing.” This also
indicated that appellant was impaired by alcohol. Officer Miller neither asked appellant if
he wanted to complete the tests nor told him that he did not have to perform them.
After appellant finished the roadside sobr iety tests, Officer Miller administered a
preliminary breath test (PBT) in accordance with Minn. Stat. § 169A.4 1, subd. 1 (2014).
He neither sought a warrant nor asked appellant if he wanted to complete the test; instead,
Officer Miller described the test, asked appella nt if he understood it, and then appellant
supplied an adequate breath sample. The record contains no evidence of any objection or
refusal to comply with this PBT testing. Officer Miller, the only witne ss at the implied-
consent hearing, was asked whether he had made an “offer” of a PBT test. He testified that
he had. When asked, “[d]id [appellant] agre e to take a PBT?,” th e officer answered, “He
did.” On cross-examination, Officer Miller agreed that he did not ask appellant “whether
or not he wanted to do [the PBT].” The PB T revealed an alcohol c oncentration of 0.13.
Based on the tests and Officer Miller’s training and experience, he believed that appellant
was under the influence of alcohol and arrest ed appellant for driving while impaired.
Appellant was placed in the back of the squad car at 2:14 a.m.
Officer Miller took appellant to the Washin gton County Jail, arriving just before
2:20 a.m. At 2:22, Officer Miller went to th e restroom. He left th e restroom at 2:24.
Officer Miller then read appe llant the implied-consent advisory at 2:30, and appellant
agreed to a breath test using the DataMaster DMT-G (DMT). Officer Miller, a certified
DMT operator who had attended a three-da y training at the Bureau of Criminal

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Apprehension on how to use the DMT, tes tified that a 15-minute observation period
immediately preceding the test is important to ensure the accuracy and reliability of the
test. Officer Miller further testified that, before conducting the DMT test, he observed
appellant for 15 minutes from the time of arrest and that he did not notice appellant burp,
belch, vomit, place anything in his mouth, or do anything else of co ncern. However, the
district court, taking Officer Miller’s restr oom break into account, found that “[b]ased on
the timeline, . . . there was neither a continuous [n]or direct observation of [appellant] that
lasted for more than ten minutes.”
The DMT process began at 2:39. Before appellant provided a breath sample, the
DMT performed a diagnostic check, which showed that the ma chine was operating
correctly. Next, the machine ran through an air-blank test, which produced results within
acceptable limits. Appellant then provided his first breath sample at 2:42, which showed
a result of 0.128. There was another air-blank test, a control sample test, and a third air-
blank test, all of which produced results within acceptable limits. Appellant provided a
second breath sample at 2:48, which showed a result of 0.122. Finally, the DMT ran
another air-blank test, which produced a result within acceptable limits. The DMT printed
a final report at 2:49 showing appellant’s alco hol concentration as 0.12. Officer Miller
testified that he did not notice anything duri ng the test that suggested that the DMT was
not in working order and that he believed the results of the test were accurate.
The district court found that there was su fficient admissible ev idence to establish
probable cause to arrest appellant and inv oke the implied-consent law even before the
roadside sobriety tests. The district court we nt on to hold that, because roadside sobriety

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tests and PBTs are not considered full searches and are therefore not subject to the Fourth
Amendment warrant requirement, the evidence gathered from these tests was admissible.
Finally, the district court found that respondent established that the DMT test was reliable
and that “Officer Miller’s failure to prope rly observe [appellant] does not invalidate the
test results unless [appellant] in fact ingested or regurgitated a substance that affected the
result.” Since there was “no evidence or cl aim that [appellant] burped, belched, vomited
or had any substance in his mouth that would affect the validity of the test result,” the
district court found the DMT test results to be reliable and accurate. As such, the district
court sustained the revocation of appellant’s driver’s license.
This appeal followed.
ISSUES
I. Are roadside field sobriety tests a sear ch within the meaning of the Fourth
Amendment?

II. Did the PBT violate appellant’s Fourth Amendment rights?

III. Did the district court abuse its discretion in admitting the DMT test result?

ANALYSIS
Appellant argues that the roadside sobrie ty tests and PBT were administered in
violation of his constitutional right to be free from unreasonable searches and seizures
because they were warrantless, and that the results of those tests must be suppressed. He
argues that the remaining evidence was insufficient to support probable cause for his arrest.
He also argues that there was insufficient foundation for the DMT to justify admitting the
test result in evidence.

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I. The district court did not err in concluding that the evidence from the PBT and
roadside sobriety tests was obtained in compli ance with the Fourth
Amendment to the United States Constitution.

Appellant first argues that roadside sobrie ty tests and PBTs are searches under the
Fourth Amendment, and that evidence resulting from those tests is therefore inadmissible
absent a warrant or a valid exception to the warrant requirement. He further argues that,
absent the evidence resulting fr om those tests, the remainin g evidence fails to establish
probable cause to have arrested him. Cons equently, he argues that the threshold Fourth
Amendment violation compels suppression of all of the evidence obtained after the stop.
In State, Dep’t of Pub. Safety v. Juncewski, the Minnesota Supreme Court held that
an officer may request a PBT if the officer po ssesses “specific and articulable facts” that
form a basis to believe that a person has been driving a motor vehicle while impaired. 308
N.W.2d 316, 321 (Minn. 1981). Since Juncewski, we have applied a reasonable-and-
articulable-suspicion test in evaluating the propriety of roadside sobriety testing and PBTs.
See, e.g., State v. Klamar, 823 N.W.2d 687, 696 (Minn. App. 2012) (determining that the
trooper developed reasonable articulable suspicion to perform an initial stop and
concluding that two indicia of intoxication reasonably justified roadside sobriety tests and
a PBT). We have specifically rejected appella nt’s argument that roadside sobriety tests
and PBTs must be predicated on probable cause. State v. Vievering, 383 N.W.2d 729, 730
(Minn. App. 1986) (“An offi cer need not possess probable cause to believe that a DWI
violation has occurred in order to admi nister a preliminary breath test.”), review denied
(Minn. May 16, 1986). Juncewski was a statutory-constructi on case and did not address
the constitutional arguments advanced by appellant here.

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Appellant contends that Juncewski and its progeny do not survive the United States
Supreme Court’s determination that “[i]n those drunk-driving investigations where police
officers can reasonably obtain a warrant befo re a blood sample can be drawn without
significantly undermining the efficacy of the search, the Fourth Amendment mandates that
they do so.” Missouri v. McNeely , 569 U.S. 141, 152, 133 S. Ct. 1552, 15 61 (2013).
McNeely arose out of a warrantless, nonconsensual seizure of a blood sample premised
solely on the exigency created by the natural dissipation of alcohol. Id. at 148, 133 S. Ct.
at 1558. McNeely addressed only a single-factor-e xigency exception to the warrant
requirement in the context of a warrantless seizure of blood. Id.
A. Roadside field sobriety testing is not a search within the meaning of the
Fourth Amendment.

We first consider appellant’s contention that roadside field sobriety tests are
searches for Fourth-Amendment purposes.
1 Such roadside tests differ in significant ways
from what is ordinarily considered a search. Searches gene rally involve the collection of
some physical evidence. See Olmstead v. United States, 277 U.S. 438, 464, 48 S. Ct. 564,
567-68 (1928) (“The amendment itself shows that the search is to be of material things.”).
Roadside sobriety tests, on the other hand, are observations of the subject made by a police

1 In this opinion, our discussi on of roadside field sobriety tests refers to a trained peace
officer’s visual observations of physical signs of intoxication or impairment. These tests
include observing a subject wh ile the subject performs specif ied physical acts, such as
walking on a straight line in a prescribed manner, and the officer observing the involuntary
physical manifestations of impairment, such as a nystagmus in a subject’s eyes. Although
a PBT is often administered roadside, we do not in this opinion include the PBT in this
discussion of roadside or field sobriety tests, and we separately cons ider it below in part
I.B.

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officer who is trained to discern clues of impairment. But “visual observation is no ‘search’
at all.” Kyllo v. United States, 533 U.S. 27, 32, 121 S. Ct. 2038, 2042 (2001). While it is
true that, in the traffic-stop situation, the officer directs the subject to complete the actions
from a position of authority, the subject is able to decline performing the requested tests.
Many drivers do in fact decline to perform roadside sobriety tests. See State v. Olson, 887
N.W.2d 692, 696 (Minn. App. 20 16) (driver refused to perform roadside sobriety tests);
Johnson v. Comm’r of Pub. Safety , 756 N.W.2d 140, 141-42 (M inn. App. 2008) (same);
State v. Mellett , 642 N.W.2d 779, 788 (M inn. App. 2002) (same). We evaluate the
propriety of roadside sobriety testing as an investigatory expansion of a traffic stop rather
than as a search. See Klamar, 823 N.W.2d at 696 (“[A]n intrusion that is not closely related
to the initial justification for the seizur e is invalid unless there is independent
reasonableness to justify that particular intr usion.” (Quotation omitte d.)). An officer’s
request that a driver perform roadside sobriety testing is not a search within the meaning
of the Fourth Amendment.
The roadside field sobriety tests did not violate appellant’s rights under the Fourth
Amendment.
B. The PBT did not violate appellant’s Fourth Amendment rights.

Appellant argues that a PBT is a sear ch entitled to full Fourth Amendment
protection, and therefore violates his constituti onal rights absent either a warrant or an
exception to the warrant requirement. He ar gues that the evidence obtained through the
warrantless PBT should be suppressed and that, after suppression, the remaining evidence
is insufficient to constitute probable cause to support his arrest.

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The state, relying on pre-McNeely law and one post-McNeely unpublished opinion
of this court, argues that the PBT was reas onable and that no warrant was necessary to
obtain a sample of appellant’s breath for purposes of the PBT. We agree with the state that
there are good policy reasons to question whether the holding in McNeely should apply to
a PBT. As the Supreme Court explained in its later Birchfield decision, the Supreme Court
has specifically approved of “the general concept of implied-consent laws that impose civil
penalties and evidentiary consequences on motorists . . . and nothing we say here should
be read to cast doubt on them.” Birchfield v. North Dakota, 136 S. Ct. 2160, 2185 (2016)
(citations omitted). And the PBT, which is inadmissible in evidence by statute, is a part of
Minnesota’s implied-consent process. Minn Stat. § 169A.41, subd. 2 (2014).
This case does not require that we reach or resolve the issue concerning whether a
PBT administered in accordance with Minn. Stat. §169A.41, subd. 1, is a search entitled to
the same treatment as other chemical tests post- McNeely, because there are two clear
reasons that suppression of the PBT result would not follow in any event. First, under well-
established law, appellant vol untarily consented to the PBT, regardless of whether it is
characterized as a search. Second, at the point in time when appellant blew into the PBT,
after several different roadside sobriety te sts had indicated impairment, the officer was
acting on probable cause to believe that appellant had been driving while impaired; as such,
the officer was authorized to arrest appellant and seize appellant’s breath incident to that
arrest, without a warrant.
Appellant consented to the PBT, and there is no record evidence to the contrary. He
argues that his consent was not voluntary. In considering whether a person’s consent is

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voluntary, courts consid er the totality of the circumstance s, “including the nature of the
encounter, the kind of person the defendant is , and what was said and how it was said.”
State v. Brooks , 838 N.W.2d 563, 569 (Minn. 2013) (quotation omitted). A person can
voluntarily consent “even if the circumstances of the encounter are uncomfortable for” that
person, but not “simply by acquiescing to a claim of lawful authority.” Id. (citation
omitted).
The Minnesota Supreme Court identified seven factors in concluding that the
defendant in Brooks voluntarily consented to chemical testing. First, the fact that a refusal
to submit to a chemical test could be admitte d as evidence in a crim inal trial for driving
under the influence does not necessarily render the consent a result of coercion.2 Id. at 570.
Second, the existence of a penalty for refusing testing bears on voluntariness but does not
automatically render consent coerced. Id. Third, whether a driver retains the right to refuse
to submit to the testing in question is a consideration. Id. at 571. Fourth, an arrest before
the claimed consent makes it less lik ely that consent was voluntary. Id. Fifth, repeated
questioning or extended custody make it more likely that the driv er’s “will had been
overborne and his capacity for self-determination critically impaired.” Id. Sixth, whether
a driver had the opportunity to consult with an attorney before agreeing to take a test is a
factor influencing whether consent was coerced. Id. Finally, courts consider whether a

2 The supreme court cited to South Dakota v. Neville, 459 U.S. 553, 564, 103 S. Ct. 916,
923 (1983), and McDonnell v. Comm’r of Pub. Safety , 473 N.W.2d 848, 855-56 (Minn.
1991), for this proposition, noting that, while both cases were decided within the context
of the Fifth Amendment, “the question in both cases was whether the existence of a
consequence for refusing to take a chemical test rendered the driver’s choice involuntary.”
Brooks, 838 N.W.2d at 570.

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driver was told he could refuse to consent. Id. at 572. The supreme court in Brooks,
balancing these considerations, held that the totality of the circumstances indicated that the
driver had voluntarily consented to the chemical tests. Id.
Here, two of the Brooks factors might suggest that appellant did not voluntarily
consent to the PBT. Appellant did not have the opportunity to consult with an attorney
before deciding whether to submit to the PBT,3 and Officer Miller did not tell him that he
had the right to refuse to submit to the PBT. But the remaining Brooks factors strongly
support the conclusion that appellant volunt arily consented to the PBT. Appellant was
detained for only a very brief time before being asked to provide a PBT, he was not
formally arrested before he took the PBT, and he was not subjected to extended
questioning. While appellant was not told that he had the option of refusing, neither was
he told that he was required to submit.
Moreover, and very significan tly in our judgment, appellant faced no criminal
penalty for refusing to blow into the PBT, and he retained the right to refuse. Brooks held
that even when a driver’s cons ent to testing is obtained after a threat of criminal charges
for refusal, that threat does not necessarily render consent involuntary. 838 N.W.2d at 571.
And there was no such threat here. The st atute governing PBTs, Minn. Stat. § 169A.41,
subd. 1, differs significantly from bot h the warrantless blood seizure in McNeely and the

3 The Minnesota Supreme Court has held that, under the Minnesota Constitution, the right
to counsel in a DWI proceeding does not attach until after arrest when the driver is asked
to submit to a chemical test after bein g read the implied-consent advisory. Friedman v.
Comm’r of Pub. Safety , 473 N.W.2d 828, 832-33 (Minn. 1991). Because appellant was
not arrested before the PBT, he was not given the opportunity to consult with an attorney
before he submitted to the PBT.

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laws at issue in Birchfield and Brooks. In Birchfield, all of the challenged laws criminalized
the refusal to submit to post-arrest testing. 136 S. Ct. at 2170-72. In expressly exempting
implied-consent procedures from its Birchfield holding, the Supreme Court stated that “[i]t
is another matter . . . not only to insist upon [testing], but also to impose criminal penalties
on the refusal to submit” to testing. Id. at 2185. In contrast to the laws at issue in Birchfield
and Brooks, and despite the statutory language that an officer may “require” a driver to
provide a preliminary breath sample upon reasonable suspicion, Minnesota’s PBT statute
does not criminalize a refusal to submit to breath testing. Minn. Stat. § 169A.41 (2014).
No penalty directly results from a driver’s exercise of his or her right to decline the test. A
driver can refuse a PBT; many drivers do. See Johnson v. Comm’r of Pub. Safety , No.
A16-1470, 2017 WL 20 62125, at *1 (Minn. App. May 15, 2017); State v. Horvath , No.
A14-0364, 2014 WL 6863212, at *1 (Minn. App. Dec. 8, 2014); Mikiska v. Comm’r of
Pub. Safety, No. A14-0495, 2014 WL 6609170, at *1 (Minn. App. Nov. 24, 2014); State
v. Elliot, No. A13-0466, 2014 WL 2013334, at *1 (Minn. App. May 19, 2014), review
granted (Minn. July 15, 2014) and order granting review vacated (Minn. Apr. 14, 2015);
State v. Mawolo , No. A13-0770, 2014 WL 2013350, at *1 (Minn. App. May 19, 2014),
review denied (Minn. Apr. 14, 2015); Banks v. Comm’r of Pub. Safety , No. A12-2288,
2013 WL 3868155 , at *1 (Minn. App. July 29, 2013); State v. Goepfert, No. A07-0536,
2008 WL 2492260, at *1 (Minn. App. June 24, 2008), review denied (Minn. Sept. 23,
2008); Prosser v. Comm’r of Pub. Safety, No. A06-2076, 2007 WL 3076909, at *1 (Minn.
App. Oct. 23, 2007); Groehler v. Comm’r of Pub. Safety , Nos. A03-765, A03-792, 2004

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WL 885561, at *2 (Minn. App. Apr. 27, 2004); State v. Lincoln , No. C7-01-1094, 2002
WL 171691, at *1 (Minn. App. Feb. 5, 2002).
Officer Miller testified that he made an “offer” that appellant submit to a PBT. The
only evidence of record is the officer’s testimony that appellant did “agree to take a PBT.”
Appellant was not threatened with any criminal or other penalty should he have opted not
to provide a PBT sample. Cf. Birchfield, 136 S. Ct. at 2170-72 (c onsidering statutes that
included criminal penalties for re fusing a chemical test). Even more definitively than in
Brooks, the record here conclusively demonstrates that appellant voluntarily consented to
provide a sample of his breath for PBT testing. 838 N.W.2d at 571 (holding that consent
was valid when nothing in th e record suggested that the defendant’s “will had been
overborne”). Having consented to the PBT, appellant cannot co mplain that the search of
his breath was not authorized by a warrant.
Even if appellant had not consented to th e PBT, appellant’s breath was subject to
seizure incident to arrest based on the record here. In State v. Bernard , the Minnesota
Supreme Court held that a warrantless brea th test is constituti onal under the search-
incident-to-arrest exception to the warrant requirement. 859 N.W.2d 762, 767 (Minn.
2015). A search incident to arrest may preced e the formal arrest “as long as the fruits of
the search are not the basis for the proba ble cause to arrest and the arrest is
contemporaneous with the search.” State v. Varnado, 582 N.W.2d 886, 892 (Minn. 1998).
Here, Officer Miller developed probable cause to believe that appellant was driving while
impaired before appellant’s PBT, based on appellant’s speeding, the odor of alcohol on his

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breath, and his performance on the roadside sobriety tests.4 Based on these facts, the PBT
results were not essential to establish probable cause for appellant’s arrest. He could have
been arrested after the roadside field sobrie ty tests indicated impairment, and his breath
was subject to seizure incident to arrest. Th erefore, and even absent appellant’s consent,
this PBT was lawfully conduct ed without a warrant under th e search-incident-to-arrest
exception to the warrant requirement. Bernard, 859 N.W.2d at 767.
II. The district court did not abuse its discretion in admitting the DMT result.

Appellant also argues that the district court erred in admitting the DMT result
because the lack of a 15-minute observation period renders the test result unreliable.
“Rulings on evidentiary matters rest within the sound discretion of the district court
and will not be reversed on appeal absent a clear abuse of discretion.” In re Source Code
Evidentiary Hearings, 816 N.W.2d 525, 537 (Minn. 2012). Admissi bility of a chemical
test result depends upon “p rima facie proof of the trus tworthiness of the test’s
administration.” State v. Dille, 258 N.W.2d 565, 568 (Minn. 1977). “The commissioner
must make a prima facie case that the test is reliable and ‘that its administration in the
particular instance conformed to the proc edure necessary to ensure reliability.’” Kramer
v. Comm’r of Pub. Safety , 706 N.W.2d 231, 235 (Minn. App. 2005) (quoting Dille, 258
N.W.2d at 567). “Once reliability is esta blished, the driver must produce evidence
suggesting why the test was untrustworthy.” Falaas v. Comm’r of Pub. Safety, 388 N.W.2d

4 Appellant also challenges the district court’s alternative finding that Officer Miller had
probable cause to arrest appella nt even before the roadside sobriety tests, but we do not
reach that question. As discu ssed above, roadside sobriety tests are not searches, and are
analyzed as investigatory expansions of a traffic stop.

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40, 42 (Minn. App. 1986). The district court determines whether the test is admissible if
its reliability is challenged. Bond v. Comm’r of Pub. Safety, 570 N.W.2d 804, 806 (Minn.
App. 1997).
“The commissioner meets his burden by sh owing that a certified [DMT] operator
administered the test and that diagnostic checks showed th at the [DMT] machine was in
working order and the chemicals used were in proper condition.” Kramer, 706 N.W.2d at
236. While appellant argues that the reference to “chemicals” in the Dille test is outdated
since the chemicals used in the Breathalyz er tests are not used in the DMT, the Dille
standard has continued to be applied to different breath-testing devices. The
commissioner’s burden is still met by showing that a certified DMT operator administered
the test and that the diagnostic tests showed the DMT to be in working order. Kramer, 706
N.W.2d at 236. Here, Officer Miller was a properly trained and certified DMT operator.
Before appellant provided a breath sample, the DMT performed a diagnostic check to show
that it was operating correctly. The DMT also ran air-blank tests before, between, and after
appellant’s breath samples. Each of these air-blank tests produced results within acceptable
limits. Based on these facts, respondent met its burden by showing that Officer Miller was
a certified operator and that the machine was in working order.
“Once a prima facie showin g of trustworthy administration has occurred, it is
‘incumbent upon [the driver] to sugges t a reason why the [chemical] test was
untrustworthy.’” Tate v. Comm’r of Pub. Safety, 356 N.W.2d 766, 768 (Minn. App. 1984)
(quoting Dille, 258 N.W.2d at 568). To do this, “the driver must present some evidence
beyond mere speculation that questions th e trustworthiness” of the report. Kramer, 706

16
N.W.2d at 236. The record here is devoi d of any evidence or argument that appellant
ingested or regurgitated any substance while Officer Miller was in the restroom. Instead,
appellant argues only that Officer Miller’s having gone into the restroom for two minutes
during the observation period invalidates the test.
The following timeline is set out in the district court’s findings of fact: Officer
Miller brought appellant to th e Washington County Jail arou nd 2:20 a.m. Officer Miller
went to the restroom at 2:22 and exited the restroom at 2:24. Officer Miller then read
appellant the implied-consent advisory at 2:30. The DMT began at 2:39. By our count,
based on the district court’s findings, the period of time between when Officer Miller exited
the restroom at 2:24 and when the DMT began at 2:39 was 15 minutes. This amounts to
compliance with the sugg ested observation period. And, as discussed above, there is no
record evidence that appellant did anything that would have introdu ced alcohol into his
mouth at any point after his arrest at 2:14.
Moreover, we have held that “[a] slight interruption of the observation period or a
less than perfect observation does not invalidate the test unless the dr iver has ingested or
regurgitated a substance that affects the results.” Falaas v. Comm’r of Pub. Safety , 388
N.W.2d 40, 42 (Minn. App. 1986). Instead, an imperfect observation period “merely gives
the driver an opportunity to challenge the test’s trustworthiness by suggesting why such a
failure makes the test results unreliable.” State v. Wickern, 411 N.W.2d 597, 599 (Minn.
App. 1987). The driver has the burden of presenting evidence that he ingested or
regurgitated a substance that would affect the results. Falaas, 388 N.W.2d at 42. “The
argument that something may have occurred during observation to affect the test result is

17
speculation and should not be used without supporting evidence as the basis for rescinding
a revocation.” Id. Here, appellant presented no evidence of any alcohol or other substance
in his mouth that would have affected the re sults, and the officer appears from the record
evidence to have observed appellant for 15 continuous minutes after his trip to the restroom
before the DMT commenced.
Admissibility is largely entrusted to the district court. Applying the Dille standard,
the district court acted within its discretion in admitting the DMT results.
D E C I S I O N
Roadside field sobriety testing is not a search under the Fourth Amendment, and the
district court did not err in admitting evidence from those tests. On this record, the PBT
did not violate appellant’s Fourth Amendment rights. Further, the district court acted
within its discretion when it admitted the DMT results.
Affirmed.