State of Minnesota, Respondent,

This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (2016).

STATE OF MINNESOTA
IN COURT OF APPEALS
A17-1573

State of Minnesota,
Respondent,

vs.

Ahmed Lafta Abduljabbar,
Appellant.

Filed July 16, 2018
Affirmed
Smith, Tracy M., Judge

Hennepin County District Court
File No. 27-CR-15-35135

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

Steven M. Tallen, Maple Grove Prosecuting Attorney, Tallen & Baertschi, Minneapolis,
Minnesota (for respondent)

Cathryn Middlebrook, Chief Appellate Public Defender, Michael McLaughlin, Assistant
Public Defender, St. Paul, Minnesota (for appellant)

Considered and decided by Smith, Tracy M., Presiding Judge; Connolly, Judge; and
Kirk, Judge.
U N P U B L I S H E D O P I N I O N
SMITH, TRACY M., Judge
Appellant Ahmed Abduljabbar challenges hi s conviction of driving while impaired,
arguing the admission of a breath-test result was plain error. We affirm.

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FACTS
On December 11, 2015, Abduljabbar was pu lled over for having a loud muffler.
After the officer who pulled over Abdulja bbar smelled alcohol and noticed that
Abduljabbar’s eyes were watery and bloodshot, she arrested Abduljabbar and took him to
the Osseo police department for breath testing. That test indicated an alcohol concentration
of 0.12.
Abduljabbar was charged with driving while under the influence of alcohol, having
a 0.08 or higher alcohol concentration within two hours of driving, and careless driving. A
jury trial was held on September 6, 2017. The state called one witness—the police officer
who arrested Abduljabbar and performed the breath test. She testified that she was certified
to operate the breath-test machine and that she knew how to recognize if the machine was
not functioning properly. Although the o fficer testified that the machine was a
“DataMaster transportable gas spectrometer with infrared option,” she did not testify as to
the specific model number, nor does that mode l number appear anywhere in the record.
After describing how she went about operating the machine when testing Abduljabbar’s
breath, the officer testified, without objec tion, that machine meas ured a 0.12 alcohol
concentration.
The jury found Abduljabbar guilty of havi ng a 0.08 or higher alcohol concentration
within two hours of driving and not guilty of the other two charges.
Abduljabbar appeals.

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D E C I S I O N
Abduljabbar argues the district court erred by admitting the result of the breath test.
Abduljabbar did not object to this admission at trial. Generally, when a defendant fails to
object to the admission of evidence at trial, the defendant forfeits review of that admission
on appeal. State v. Fraga, 898 N.W.2d 263, 276 (Minn. 2017). However, “the plain-error
rule provides a limited power to correct cert ain errors that a defendant has forfeited.” Id.
at 277 (quotation omitted).
The plain-error rule requires a defendant to establish (1) an
error, (2) that is plain in that it violates or contradicts case law
or a rule, and (3) that the error affects the defendant’s
substantial rights. If all three requirements are met, we then
determine whether relief is required to ensure fairness and the
integrity of the judicial proceedings.

Id. (citation and quotation omitted ). This fourth prong is satisfied “only ‘in those
circumstances in which a miscarriage of justice would otherwise result.’” State v. Huber,
877 N.W.2d 519, 528 (Minn. 2016) (quoting United States v. Frady , 456 U.S. 152, 163
n.14, 102 S. Ct. 1584, 1592 n.14 (1982)).
Under Minn. R. Evid. 702, an expert opinion “must have fo undational reliability”
to be admissible. However, Minnesota statutes relieve the state of this burden, provided
certain conditions are met, in the context of breath-test results:
In any civil or criminal hearing or trial, the results of a
breath test, when performed by a person who has been fully
trained in the use of an infra red or other approved breath-
testing instrument, as defined in section 169A.03, subdivision
11, pursuant to training given or approved by the commissioner
of public safety or the commissioner’s acting agent, are
admissible in evidence without antecedent expert testimony
that an infrared or other appr oved breath-testing instrument

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provides a trustworthy and reliable measure of the alcohol in
the breath.

Minn. Stat. § 634.16 (2016). The Commissioner of Public Safety has approved three such
instruments: “[t]he Intoxily zer 5000EN,” “[t]he DataMast er DMT-G with Fuel Cell
Option,” and “[t]he DataMaster DMT-G w ith Rev A Fuel Cell Option.” Minn. R.
7502.0425, subps. 1-3 (2017).
Abduljabbar argues that the district court e rred in admitting the results of the breath
test without the state first (1) laying foundation that the machine used was one of the models
approved by the Commissioner of Public Safety or (2) if it was not one of those models,
laying foundation that the machine used provides a trustworthy and reliable measure of the
alcohol in breath. He asserts the error wa s plain because, under Mi nn. R. Evid. 702 and
Minn. Stat. § 634.16, an expert opinion based on a breath test “ must have foundational
reliability” unless an “approved breath-testi ng instrument” is used. And Abduljabbar
argues that the plain error affected his substantial rights because the test result was the only
evidence establishing that Abduljabbar had an alcohol concentration of more than 0.08.
We need not decide whether admitting th e test result without foundation meets the
first three prongs of the plain-error test because the error, if any, does not satisfy the fourth
prong. Under the fourth prong, we may exercise our discretion to correct “only particularly
egregious errors” when a “miscarriage of justice” would otherwise result. Huber, 877
N.W.2d at 528 (quotation om itted). Abduljabbar argues such a miscarriage would occur
because “[t]he erroneous admission of the breath test result tainted the very foundation of

5
the state’s theory of guilt. . . . Without the breath-test ev idence, he would have been
acquitted of all the charges.”
We see no particularly egregious error caus ing a miscarriage of justice here. Rather,
this case is analogous to State v. Manthey, 711 N.W.2d 498 (Minn. 2006). In that case, the
Minnesota Supreme Court reviewed the u nobjected-to admission of several hearsay
statements, which, based on the foundatio n laid, did not comport with any hearsay
exception under Minn. R. Evid. 803. Id. at 503-04. In declining to reverse for plain error,
the court noted that, due to the “complexity and subtlety of the operation of the hearsay
rule and its exceptions,” it was “particularly important that a full discussion of admissibility
be conducted at trial.” Id. at 504. Because the defendant did not object, “the state was not
given the opportunity to establish that some or all of the statements were admissible under
one of the numerous exceptions to the hearsay rule.” Id.
Similar circumstances are present here . Although there is no on-the-record
foundation that makes Abduljabbar’s breath-t est result admissible un der Minn. R. Evid.
702 (or that exempts it from the rule’s foundation requirement under Minn. Stat. § 634.16),
as in Manthey, this foundation is lacking because Abduljabbar did not object and force the
state to lay it. Had Abduljabb ar done so, the state could ha ve asked the arresting officer
what model of breath-test machine was used or else called an expert to testify as to the
reliability of the device. Indeed, Abduljabbar is unable to cite any case where a Minnesota
appellate court has, on plain-error review, reversed a conviction on the basis that otherwise
admissible testimony was imprope rly admitted because the re quisite foundation was not
presented to the district court.

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A defendant may have strategic reasons for not making foundational objections to
expert testimony—especially expert testimony that is routinely admitted in DWI cases. For
example, a defendant may wish to avoid bolstering the cr edibility of the evidence by
insisting on testimony establishing the reliability of the testing device, or a defendant may
wish to keep the testimony as brief as possi ble when the defendant believes admission of
the evidence is inevitable an yway. A district court does not commit a particularly
egregious error, much less one rendering a tr ial unfair, by not insisting on foundational
testimony that the defendant himself is apparently willing to forgo.
Because a new trial is not necessary to ensu re the fairness or integrity of judicial
proceedings regardless of whether admission of the breath-test resu lt was plain error, we
affirm Abduljabbar’s conviction.
Affirmed.