State of Minnesota, Respondent,

This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (2018).

STATE OF MINNESOTA
IN COURT OF APPEALS
A18-1592

State of Minnesota,
Respondent,

vs.

Brady Edward Speer,
Appellant.

Filed June 17, 2019
Affirmed
Connolly, Judge

Olmsted County District Court
File No. 55-CR-17-4715

Keith Ellison, Attorney General, St. Paul, Minnesota; and

Jason T. Loos, Rochester City Attorney, Christopher K. White, Assistant City Attorney,
Rochester, Minnesota (for respondent)

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

Considered and decided by Connolly, Presiding Judge; Ross, Judge; and Stauber,
Judge.

 Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to
Minn. Const. art. VI, § 10.

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U N P U B L I S H E D O P I N I O N
CONNOLLY, Judge
Appellant challenges his conviction for fourth-degree driving while impaired (DWI)
and possession of an open container, arguing that (1) the district court abused its discretion
in admitting breath-test results that lacked foundational reliability; and (2) he is entitled to
a new trial based on prosecutorial misconduct during closing argument. Because the
district court did not abuse its discretion in admitting the breath -test r esults and the
prosecutorial misconduct was harmless beyond a reasonable doubt, we affirm.
FACTS
In July 2017, Rochester Police Sergeant Bert Otto stopped a vehicle driven by
appellant Brady Edward Speer after observing it cross the fog line several times. When
Sergeant Otto spoke with Speer, he could “smell a slight odor of alcohol coming from him
and the interior of the vehicle.” When questioned by Sergeant Otto, Speer admitted
drinking “two Budweiser beers.” Rochester Police Sergeant Terry Pretzloff arrived on the
scene and ad ministered three field sobriety tests. After witnessing signs of impairment
during testing, Sergeant Pretzloff arrested Speer for DWI. At Speer’s request, Sergeant
Otto parked Speer’s vehicle off of the roadway. While moving the vehicle, Sergeant Otto
discovered two open cans of Budweiser beer under the driver’s seat.
Sergeant Pretzloff took Speer to the adult detention center to condu ct the
DataMaster (DMT) breath test. Sergeant Pretzloff situated Speer in the interview room
then entered an adjacent room—separated by a glass partition. Speer agreed to take the
DMT breath test. The first sample indicated an alcohol concentration of 0.086. The second

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sample indicated an alcohol concentration of 0.090. The final result of the test indicated
an alcohol concentration of 0.08. Sergeant Pretzloff did not observe anything that
concerned him about the integrity of the test.
The state cha rged Speer with two counts of fourth -degree DWI under Minn. Stat.
§ 169A.20, subds. 1(1), (5) (2016), and possession of an open container under Minn. Stat.
§ 169A.35, subd. 3 (2016). At the jury trial, Speer objected to Sergeant Pretzloff’s
testimony and the breath-test results based on foundation. When questioned further by the
district court, Speer explained that he objected to the observation period. The district court
admitted the brea th-test results, but agreed to reconsider admissibility after cross -
examination of Sergeant Pretzloff. During cross-examination of Sergeant Pretzloff, Speer
renewed his objection. The district court denied the objection and allowed the breath -test
results to remain in evidence.
During closing argument, the prosecutor suggested that the DMT training manual ,
which was not admitted into evidence, did not require “constant visual on the Defendant
for the full 15 -minute period of time.” Speer objected arguin g that the statement was
improper. The district court sustained the objection and allowed the prosecutor to rephrase
the argument. Speer did not object to the rephrased argument. During deliberation, the
jury asked whether it could view the procedural g uidelines for observation in the DMT
training manual. The district court responded that the jury could not because the manual
was not admitted into evidence.
The jury found Speer guilty of one count of fourth-degree DWI with an alcohol
concentration of 0.08 or more (Minn. Stat. § 169A.20, subd. 1(5)) and possession of an

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open container (Minn. Stat. § 169A.35, subd. 3), but not guilty of one count of fourth-
degree DWI for driving under the influence of alcohol (Minn. Stat. § 169A.20, subd. 1(1)).
The district court ordered a one-year stay of imposition. Speer appeals.
D E C I S I O N
I.
Speer first argues that the district court abused its discretion by admitting breath-
test results that lacked foundational reliability . “Evidentiary rulings rest within the sound
discretion of the [district] court and will not be reversed absent a clear abuse of discretion.
On appeal, the appellant has the burden of establishing that the [district] court abused its
discretion and that appellant was thereby prejudiced.” State v. Amos, 658 N.W.2d 201, 203
(Minn. 2003) (citation omitted).
A DMT breath test consists of “one adequate breath -sample analysis, one control
analysis, and a second, adequate breat h-sample analysis.” Minn. Stat. § 169A.51,
subd. 5(a) (2018). A sample is considered “adequate if the instrument analyzes the sample
and does not indicate the sample is deficient.” Id., subd. 5(b) (2018). The results of breath
testing performed by a fully trained person, “are admissible in evidence without antecedent
expert testimony that [such] instrument provides a trustworthy and reliable measure of the
alcohol in the breath.” Minn. Stat. § 634.16 (2018); see State v. Birk , 687 N.W.2d 634,
637 (Minn. App. 2004) (“The results of [a breath] test are admissible as a trustworthy and
reliable measure of breath alcohol if a properly certified operator performs the test.”).
“Once a prima facie showing of trustworthy administration has occurred, it is incumbent

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on the opponent to suggest a reason why the test was untrustworthy. ” Bond v. Comm’r of
Pub. Safety, 570 N.W.2d 804, 806 (Minn. App. 1997) (quotation omitted).
The DMT breath test here was adequate because there was one adequate breath
sample, a control analysis, a seco nd adequate breath sample, and the instrument did not
indicate a deficiency. See Minn. Stat. § 169A.51, subd. 5. The state presented prima facie
foundation for admitting the breath-test results because Sergeant Pretzloff testified that he
is a certified operator of the DMT instrument. See Bond, 570 N.W.2d at 807 (noting that
the commissioner established prima facie foundation for admitting the test results by
demonstrating that a properly trained person performed the test).
Speer challenged the validity of the breath-test results based on the observation
period. The driver may challenge the test’s reliability by establishing that some irregularity
occurred during the observation period, which would render the test result invalid. Kramer
v. Comm’r of Pub. Safety, 706 N.W.2d 231, 237 (Minn. App. 2005). “The purpose of the
observation period is to preclude the possibility that the testimony may be affected by
mouth alcohol, resulting from burping or vomiting.” State v. Nelson, 399 N.W.2d 629, 631
(Minn. App. 1987) , review denied (Minn. Apr. 17, 1987). A “slight interruption of the
observation period or a less than perfect observation does not invalidate the test unless the
driver has ingested or regurgitated a substance that affects the results, and the burden is on
the driver to present such evidence.” Kramer, 706 N.W.2d at 237. “At most, the contention
that the observation period was ‘faulty’ goes to the weight and not the admissibility of the
test results.” Nelson, 399 N.W.2d at 632.

6
Sergeant Pretzloff testified that the observation period was a necessary scientific
safeguard that must be performed properly, and if not performed properly, the breath -test
results are not valid. Sergeant Pretzloff testified that during th e observation period, he
observes whether the person might be putting something in their mouth, burping, belching,
or vomiting. He explained that if the suspect belches or burps, the alcohol vapors can go
into his mouth and artificially raise the reading. He testified that, after the “mouth check,”
the suspect is positioned in an interview cell. He then described the layout of the DMT
testing room:
So if you walk into the room, the machine is directly off
to the left against the wall . . . . And then off to the rig ht side
would be where officers would go to be on the other side of the
glass partition from the subject that we’d bring into the jail.

He explained, “I am on the other side of a glass wall from them so I’m observing them the
entire time until I walk around to get them out of that room and walk right next door to do
the DMT.”
When asked by Speer’s attorney whether he could observe a suspect talking on the
phone if he was at the testing instrument, Sergeant Pretzloff responded, “No, because
there’s a wall between there.” Sergeant Pretzloff then testified that Speer was on the phone
at the time he started operating the breath-test instrument and thus was not in his “area of
observation” at that time. Sergeant Pretzloff agreed that it was an improper observation
period. It is not clear exactly how long Speer was outside of Sergeant Pretzloff’s area of
observation, but Sergeant Pretzloff noted it only takes “two to three seconds” to walk
around the glass partition into the interview room.

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Moreover, Sergeant Pretzloff testified that he did not observe anything going into
Speer’s mouth or any indication of vomiting or belching by Speer. He also testified that
he did not hear Speer burp. He explained that the DMT instrument has safeguards that
indicate if mouth alcohol is an issue, such as indicating an invalid sample, and Speer’s
breath test did not indicate that mouth alcohol was an issue. He testified that nothing
caused him concern about the integrity of the test.
Speer suggests the breath-test results are unreliable because Speer may have burped
during the time that Sergeant Pretzloff was not observing him. “A driver will not be
successful in challenging [breath-]test results if his arguments rest upon mere speculation
that something mi ght have occurred to invalidate those results.” Hounsell v. Comm’r of
Pub. Safety, 401 N.W.2d 94, 96 (Minn. App. 1987). “To impeach the credibility of breath-
test results, a driver must prove that he burped during the observation period and must also
demonstrate that the burping actually affected the test results.” Junker v. Comm’r of Pub.
Safety, 925 N.W.2d 661, 663 (Minn. App. 2019). Speer offered no evidence that he
actually burped during the observation period. Furthermore, even if Speer had offered
evidence that he burped during the observation period, Sergeant Pretzloff explicitly
testified that the DMT instrument did not indicate that mouth alcohol was an issue during
Speer’s test administration . Speer offered no evidence to counter this. Therefore, Speer
did not “sufficiently demonstrate that the burping, belching, or vomiting actually affected
the test results.” Id. at 661.
Speer cites McGregor v. Comm’r of Pub. Safety , as one case in which the breath-
test results were deemed inadmissible based on improper observation. 386 N.W.2d 339

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(Minn. App. 1986). But the observation in McGregor was improper because “ the officer
had no training, did not know why the driver was to be observed, or what to observe.” Id.
at 340. This court noted, “The fact [that] the officer worked on her police reports during
the observation period is not fatal. We have previously held similar lapses in observation
do not invalidate the test, but instead provide the driver with an opportunity to suggest
reasons as to why the lapse makes the test unreliable .” Id. Distinguishable from
McGregor, Sergeant Pretzloff was trained in administering DMT breath tests and explained
why the observation period was important and what he observes. Thus McGregor does not
require exclusion of the breath-test results here.
Speer argues that Sergeant Pretzloff ’s testimony alone rendered admission of the
test re sults an abuse of discretion because he “ testified that a properly conducted
observation period is essential to conducting a proper breath test, and admitted that a proper
observation period was not conducted with Speer.” But case law establishes that a faulty
observation period goes to the weight of the test results, rather than admissibility. See
Nelson, 399 N.W.2d at 632 (noting that the faulty observation period goes to the weight of
the test results rather than admissibility); Kramer, 706 N.W.2d at 236 (noting that evidence
challenging the trustworthiness of the test results affects the weight of the results, not
admissibility). As a faulty observation period does not require exclusion of the breath-test
results, we conclude that the district court did not abuse its discretion in admitting them.
II.
Speer next argues that he is entitled to a new trial because the prosecutor committed
misconduct during closing argument by arguing facts not in evidence, which

9
misrepresented the burden o f proof. “A prosecutor should not refer to facts not in
evidence.” State v. Crane , 766 N.W.2d 68, 74 (Minn. App. 2009) (quotation omitted),
review denied (Minn. Aug. 26, 2009). “Arguments that shift the burden of proof to the
defendant to prove his innocence are improper.” State v. Carridine, 812 N.W.2d 130, 148
(Minn. 2012). The state concedes that the prosecutor’s reference to facts not in evidence
was misconduct, but argues it was harmless beyond a reasonable doubt.
During closing argument, the prosecutor argued,
You’ve heard some significant questioning and
suggesting that there was something wrong with the
observation period in this case. And I would ask that you keep
your eye on the ball on this point.
There were suggestions or innuendo that an observation
requires very specific certain conduct by an officer. And
really, I would suggest, maybe you heard it dif ferently, but it
seemed to be a suggestion that the law or the DMT training
manual required constant visual on the Defendant for the full
15-minute period of time. Do you think the DMT manual says
that? Do you think if it did the officers would have been asked
that exact question, and that part of the DMT manual would
have been pointed out to the DMT officers?

(Emphasis added.) Speer objected, arguing that the statement was improper for closing
argument because the prosecutor alluded to facts not in evidence and implied that Speer
had been deficient in questioning the witnesses. The district court agreed that the
prosecutor was “using the absence of a question to suggest something that’s not in the DMT
manual.” The prosecutor asked if he could “address the implication that the officer did
something wrong by not having his eyes on [Speer] constantly?” The district court said
the prosecutor cou ld if the statement was rephrased to avoid suggesting what the DMT
manual required. The prosecutor then stated: “[T]here has been no evidence presented to

10
you that there is a requirement that the officer maintain continuous visual observation of a
subject for 15 minutes. And I would suggest to you that the questioning by Counsel has
implied that there is that requirement.” Speer did not object again during closing argument.
“For objected-to prosecutorial misconduct, this court applies a two-tiered harmless-
error test, the application of which varies based on the severity of the misconduct.”1 State
v. Banks , 875 N.W.2d 338, 348 (Minn. App. 2016) (quotation omitted) , review denied
(Minn. Sept. 28, 2016). “Serious misconduct is ‘harmless beyond a reasonable doubt if the
verdict rendered was sure ly unattributable to the error,’ while less serious misconduct is
harmless unless ‘the misconduct likely played a substantial part in influencing the jury to
convict.’” Id. (quoting State v. Powers, 654 N.W.2d 667, 668 (Minn. 2003)).
Even under the higher standard for serious misconduct, the prosecutorial
misconduct here was harmless beyond a reasonable doubt. In State v. Caulfield , the
supreme court noted several factors relevant to this analysis. 722 N.W.2d 304, 314 (Minn.
2006). Appellate courts look at how the evidence was presented, whether the state
emphasized it, whether the evidence was highly persuasive or circumstantial, whether the
defendant countered it, and whether there was other strong evidence of guilt. State v. Wren,
738 N.W.2d 378, 394 (Minn. 2007) (applying the Caulfield factors in the context of
prosecutorial misconduct). When reviewing claims of prosecutorial misconduct, we

1 The supreme court has questioned whether this two -tiered approach is still good law,
while declining to decide the question. See State v. McDaniel, 777 N.W.2d 739, 749 (Minn.
2010) (noting it has “not yet decided whether this two -tiered approach” remains viable) ;
State v. Ramey , 721 N.W.2d 294, 300 n.4 (Minn. 2006) (“We leave for another day the
question of whether the . . . two-tiered approach should continue to apply to cases involving
objected-to prosecutorial misconduct.”).

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consider “the closing argument as a whole, rather than just selective phrases or remarks.”
Banks, 875 N.W.2d at 348.
Our review of the Caulfield factors leads us to conclude that the verdict rendered
was surely unattributable to the error. The improper reference to the manual here was brief,
spanning only 11 lines of the 12 -page closing argument of the 486 -page trial transcript.
See, e.g., State v. Matthews, 779 N.W.2d 543, 552 ( Minn. 2010) (holding that the alleged
misconduct did not permeate the entire argument because it was “ limited to a few lines in
a 48-page closing argument”); State v. Swanson, 707 N.W.2d 645, 658 ( Minn. 2006)
(holding that the misconduct was harmless because it was “confined to roughly two pages
of transcript of a record comprising over 1,200 pages” and there was other strong evidence
of guilt). Following the objection, the prosecutor rephrased the argument, and Speer did
not object again. The jury also heard considerable testimony about the observation period
requirements and Sergeant Pretzloff ag reed that the observation was improper. S peer
countered the evidence during closing argument by specifically addressing the prosecutor’s
statements and emphasizing that the burden of proof was on the state. And the jury here
was properly instructed that the statements of attorneys, including closing argument, were
not evidence. See State v. Johnson , 616 N.W.2d 720, 728 (Minn. 2000) (ruling that
attorney argument based on facts not in evidence did not prejudice the defendant because
the jury was instructe d that attorneys’ arguments were not evidence); see also Matthews,
779 N.W.2d at 550 (reiterating presumption “that juries follow instru ctions given by the
court”).

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Finally, there was other strong evidence of Speer’s guilt. Sergeant Otto observed
Speer’s vehicle cross the fog line several times. Sergeant Otto smell ed a slight odor of
alcohol coming from Speer. Speer admitted he had “two Budweiser beers” to drink. There
were two open cans of Budweiser beer in Speer’s vehicle . Speer exhibited signs of
impairment during the three field sobriety tests. The breath-test instrument indicated an
alcohol concentration of 0.08 and did not indicate that mouth alcohol was an issue.
Speer argues that “it is impossible to say that the jury’s v erdict was unattributable
to this error” based on its request to “see the procedural guidelines for observation in the
DMT manual.” But the manual’s observation guidelines were referenced several times
during trial—not just during closing arguments. So it is not fair to assume that the jury
wanted to see the DMT manual only because of the prosecutor’s statements. And when
asked by the jury, the district court responded,
The answer to your question, folks, is no, the manual is not in
evidence and therefore is not available for your reference. You
have all the evidence that you will be presented for your
consideration in deciding this case. You should decide the case
based on your recollection of the witnesses’ testimony.

This instruction again limited the effect of the prosecutor’s statement because it reminded
the jury to consider only the record evidence, which we presume they did. See Matthews,
779 N.W.2d at 550 (“We presume that juries follow instru ctions given by the court .”).
Thus Speer’s argument is unpersuasive.
Given the jury instructions, brevity of the statement, defense counsel’s opportunity
to counter the evidence, and other strong evidence of guilt, the verdict rendered was surely

13
unattributable to the error. Accordingly, we conclude that the prosecutorial misconduct
was harmless beyond a reasonable doubt.
Affirmed.