Lee Ray Bolch, petitioner, Appellant,

This opinion is nonprecedential except as provided by
Minn. R. Civ. App. P. 136.01, subd. 1(c).

STATE OF MINNESOTA
IN COURT OF APPEALS
A20-0688

Lee Ray Bolch, petitioner,
Appellant,

vs.

Commissioner of Public Safety,
Respondent.

Filed April 12, 2021
Affirmed
Bryan, Judge

Nobles County District Court
File No. 53-CV-19-1056

Robert J. Kouba, Kans Law Firm LLC, Bloomington, Minnesota (for appellant)

Keith Ellison, Attorney General, Cory J. Marsolek, Assistant Attorney General, St. Paul,
Minnesota (for respondent)

Considered and decided by Bjorkman, Presiding Judge; Bratvold, Judge; and Bryan,
Judge.
NONPRECEDENTIAL OPINION
BRYAN, Judge
In this appeal from the district court’s order affirming the revocation of appellant ’s
driving privileges, appellant challenges the following three aspects of the district court’s
order: (1) the district court concluded that the officer acted reasonably in conducting the
driving-while-impaired (DWI) investigation; ( 2) the district court admitted the DataMaster

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Transportable (DMT) breath-test results into evidence; and ( 3) the district court found that
appellant’s al cohol concentration exceeded the legal limit.
First, we conclude that the objective facts render the method of investigatio n
reasonable. Second, we conclude that because the record contains a reasonable basis in
fact supporting the district court ’s decision regarding the weight of the expert testimo ny ,
the district court did not abuse its discretion when it admitted the DMT breath-test results.
Third, we conclude that because we are not left with a definite and firm conviction that a
mistake has been made, the district court did not clearly err when it found that appellant ’s
alcohol concentration exceeded the legal limit . We affirm the district court ’s order
sustaining the revocation of appellant ’s driving privileges.
FACTS
On September 23, 2019, appellant Lee Ray Bolch was arrested for DWI.
Respondent Commissioner of Public Safety subsequently revoked Bolch’s driver’s license
and privileges. On October 25, 2019, Bolch petitioned for rescission of the order revoking
his license. Following an implied -consent hearing, the district court denied Bolch ’s
petition and sustained the commissioner’s revocation of Bolch’s driving privileges.
The evidence presented at the hearing established the following facts concerning the
investigatory traffic stop and the DMT breath test. On September 23, 2019, at
approximately 9:55 p.m., Officer Timothy Gaul was finishing his shift and entering his
driveway when he heard loud exhaust noise coming from a motor vehicle. Gaul then saw
the vehicle drive past his residence at an estimated speed of 45 -50 miles per hour in a 30
miles-per-hour z one. Gaul activated his emergency lights and pursued the vehicle for

3
violating the speed limit and for potential violations of applicable noise restrictions. Gaul
testified that he had some difficulty catching up to the vehicle and that he believed th e
encounter could end up in a pursuit. Gaul also testified that it was possible that the driver
did not see Gaul’s emergency lights . Eventually, Gaul saw the vehicle pull into a
residential driveway. Gaul testified that he positioned his patrol car in the street
“somewhere in the area” behind the vehicle and that the vehicle could not leave the
driveway.1
Gaul approached the driver’s side of the vehicle and observed that the driver—later
identified as Bolch—was the only person inside the vehicle . Upon making contact with
Bolch, Gaul testified that he could smell alcohol emanating from the vehicle, Bolch’s
person, or Bolch’s breath, but he could not isolate the source of the odor while Bolch
remained in his vehicle. Gaul testified that in order to determine “where the alcohol smell
[was] coming from,” he decided to have Bolch sit with him in the front seat of his patrol
car. Once they were both i nside the patrol car, Gaul observed that Bolch’s eyes were
bloodshot and a bit watery, and that Bolch had slightly slurred speech. Gaul testified that
he “could definitely tell” that the alcohol smell was coming from Bolch’s breath.
Gaul administered a field sobriety test, which Bolch failed. Gaul also conducted a
preliminary breath test, which indicated an alcohol concentration of 0.135. G aul placed
Bolch under arrest for DWI and transported him to jail to administer a DMT chemical
breath test. Gaul is a certified DMT operator and is trained to administer DMT testing.

1 At the hearing, Bolch argued that Gaul’s positioning his patrol car initiated an improper
seizure. The district court disagreed. This issue is not before us on appeal.

4
Before administering the test, Gaul observed Bolch for over 20 minutes and did not observe
Bolch belch, burp, vomit, eat, or drink. Gaul also did not observe any foreign objects i n
Bolch’s mouth. Bolch testified that he had his full upper and lower dentures in his mouth
and that he often has to clean out food and other particles. Bolch testified that he did not
eat or drink anything after being arrested and that he was unsure whe n he last ate or drank
before being arrested. Gaul did not ask Bolch to remove his dentures. Gaul then ran a
diagnostic check , and the DMT instrument showed no issues. Gaul proceeded to
administer two tests. The first test indicated an alcohol concentration of 0.148 and the
second test indicated alcohol concentration of 0.144.2 The final report value showed a
result of 0.14. Gaul testified that the DMT gave no error messages, and he had no rea son
to doubt the result.
At the hearing, both parties called experts to testify regarding mouth alcohol. The
parties stipulated to the admission of the experts ’ curricula vitae and qualificatio ns.
Bolch’s expert is a consultant in forensic toxicology who is familiar with the DMT, the
Minnesota Bureau of Cri minal Apprehension (BCA) testing procedure, and the BCA
testing manual. He opined that the failure to remove Bolch’s dentures makes the DMT test
results unreliable. He explained that objects in the mouth could contain mouth alcohol and
affect the results of the chemical test. The expert discussed a 1992 study concluding that

2 Minnesota Statutes section 169A.03, subdivision 2 (2020), defines alcohol concentratio n
in terms of breath, blood, and urine: “ ‘Alcohol concentration’ means: (1) the number of
grams of alcohol per 100 milliliters of blood; (2) the number of grams of alcohol per 210
liters of breath; or (3) the number of grams of alcohol per 67 milliliters of urine.” The
DMT reports its results in grams of alcohol per 210 liters of breath.

5
wearing dentures during the testing process had no meaningful effect on the test results.
Bolch’s expert disagreed with this conclusion and opined that the study was irrelevant
today. The expert conced ed that, aside from the 15 -minute observation period, there are
two other safeguards that prevent mouth alcohol from affecting the DMT test: the DMT’s
negative slope detector and duplicate testing. He agreed that nothing in the test r ecord—
including those two safeguards—indicated the presence of mouth alcohol in this case .
The commissioner’s expert is a f orensic scientist in the breath -alcohol calibratio n
laboratory at the BCA where she maintains, repairs, and certifies instruments for breath
testing. She also t rains officers on how to administer breath tests accurately. She testified
that Gaul conducted the test correctly and went through all necessary BCA procedures.
She also testified that, based on numerous research studies, mout h alcohol will dissipate
within 15 minutes and that the observation period in this case was more than enough time
for any mouth alcohol to dissipate even with dentures. She explained that trainers instruct
officers not to have test subjects remove dentures or tongue rings. She was also aware of
the 1992 study. She testified that it remained relevant. She opined that because the study
required subjects to swish alcohol in their mouths for two minutes which is much longer
than regular drinking situations and the alcohol still dissipated within 20 minutes, the 1992
study supported the reliability of the testing process. She also testified concerning the other
two safeguards. She testified that the DMT ’s negative slope detector measure s mouth
alcohol prior to measuring lung alcohol and that the presence of mouth alcohol will render
the test invalid on the final report. In addition, she described the duplicative test safeguard
which requires the agreement between the first and second tests to be within 0.02. Because

6
the presence of mouth alcohol would cause significant variations in duplicate test results,
this safeguard enhances the test ’s validity. She testified that in this case, the three
safeguards gave no indication of mouth alcohol , and she concluded that the test resul ts
were accurate and reliable.
Following the hearing, the district court found that Gaul followed BCA procedure,
the DMT was in working condition , and the DMT was operated by a certified operator
without error. Based on these findings, the district court concluded that the commissio ner
established a prima facie c ase that the test was reliable. The district court weighed the
competing expert testimony and gave more weight to the commissioner’s expert because
of her direct experience with the DMT in the BCA laboratory and her experience utilizing
the DMT. The district court noted that while Bolch’s expert testified that wearing dentures
affects the reliability of test results, the commissioner’s expert rebutted this assertion. The
district court also noted that there was no evidence to indicate the presence of mouth
alcohol in this case. On the contrary, the district court credited the commissioner’s expert’s
testimony that “the [DMT] has a ne gative slope detector that would note the presence of
mouth alcohol based upon a decreasing alcohol slope measurement as the breath test was
administered, and cause the results to be invalidated.” The district court found that the
negative slope detector in the case did not indicate the presence of mouth alcohol. Based
on the weight of the evidence, t he district court concluded that Bolch did not meet his
burden of contradicting the test results “because the evidence presented by [Bolch’s expert]
is based on speculation about the presence of mouth alcohol which is not supported by
actual evidence in this case.” The district court found that Bolch’s alcohol concentratio n

7
was 0.144, exceeding the legal limit. The district court then a ffirmed the commissioner ’s
revocation of Bolch’s driving privileges, and Bolch appeals.
DECISION
I. Investigation of the DWI Offense
Bolch argues that the expansion of the investigatory traffic stop was constitutionally
invalid because it was not reasonable to ask Bolch to sit in the front seat of the patrol car. 3
We disagree and conclude that b ecause the method of investigation was reasonable, the
expansion was constitutionally valid.
The United States and Minnesota Constitutions guarantee the “right of the people
to be secure in their persons, houses, papers, and effects” against “unreasonable searches
and seizures.” U.S. Const. amend. IV; Minn. Const. art. I, § 10. In the context of minor
traffic violations, the Minnesota Supre me Court has interpreted article I, section 10 of the
Minnesota Constitution to provide more protection than the Fourth Amendment of the
United States Constitution, and has explicitly adopted the principles and framework of
Terry v. Ohio , 392 U.S. 1, 88 S. Ct. 1868 (1968) “for evaluating the reasonableness of
seizures during traffic stops even when a minor law has been violated.” State v. Askerooth,
681 N.W.2d 353, 363 (Minn. 2004). “A Terry analysis involves a dual inquiry. First, we

3 Separate from the challenge to the method of the DWI investigation, Bolch also seems to
question the basis for Gaul ’s decision to expand the scope of the investigation from
speeding and noise to a DWI investigation. To the extent that Bolch challenges this portion
of the district court ’s decision, the argument lacks merit. When an officer approaches a
lawfully stopped vehicle and detects the odor of alcohol, it is reasonable to expand the
scope of the encounter in order to investigate a possibl e DWI crime. State v. Lopez, 631
N.W.2d 810, 814 (Minn. App. 2001) , review denied (Minn. Sept. 25, 2001).

8
ask whether the stop was justified at its inception. Second, we ask whether the actions of
the police during the stop were reasonably related to and justified by the circumstances that
gave rise to the stop in the first place.” Id. at 364 (citations omitted). Because Bolch does
not challenge the basis for the initial stop,4 our focus is on the second prong of the Terry
inquiry. “The second Terry prong constrains the scope and methods of a search or seizure.”
Id. “An initially valid stop may become invalid if it becomes intolerable in its intensity or
scope.” Id. (quotations omitted). We review a challenge to the reasonableness of the
investigative methods de novo.5 Harrison v. Comm’r of Pub. Safety, 781 N.W.2d 918, 920
(Minn. App. 2010).
Bolch argues that Gaul’s request for Bolch to sit in the front seat of the patrol car
was unreasonable because it was not the least intrusive means available to investigate the
DWI offense. We are not persuaded for two reasons. First, Bolch overstates the legal
authority on wh ich he relies. The law does not require that an officer employ the least
intrusive means available. Bolch is correct that t he Supreme Court used a similar phrase
in Florida v. Royer . 460 U.S. 491, 500, 103 S. Ct. 1319, 1325-26 (1983) (encouraging

4 Although Bolch initially challenged the validity of the stop before the district court, Bolch
does not raise this issue on appeal. We also note that Bolch does not argue that the duration
of the investigative stop was excessive, and concedes that he was in the front seat of the
patrol car for only a short period of time. Accordingly, we need not address either issue.
5 In his statement of facts, Bolch includes four footnotes that question a factual findin g
made by the district court. Because Bolch does not specifically argue that these asserted
findings require reversal, we need not address them . See McKenzie v. State , 583 N.W.2d
744, 746 n.1 (Minn. 1998) (declining to address an argument to which appellant “allude[d ]”
but failed to adequately discuss); State, Dep’t of Labor & Indus. v. Wintz Parcel Drivers,
Inc., 558 N.W.2d 480, 480 (Minn. 1997) (declining to reach issues that were inadequately
briefed).

9
officers to use “the least intrusive means reasonably available to verify or dispel the
officer’s suspicion in a short period of time” (emphasis added) ). Contrary to Bolch ’s
argument, however, the phrase included the modifier “reasonably,” and the Supreme Court
subsequently clarified that this phrase “was directed at the length of the investigative stop,
not at whether the police had a less intrusive means to verify their suspicions .” United
States v. Sokolow , 490 U.S. 1, 11, 109 S. Ct. 1581, 1587 (1989). In f act, the Court went
on to expressly reject Bolch ’s interpretation of Florida v. Royer because such a rule is
untenable:
The reasonableness of the officer ’s decision to stop a suspect
does not turn on the availability of less intrusive investigato ry
techniques. Such a rule would unduly hamp er the police ’s
ability to make swift, on-the-spot decisions—here, respondent
was about to get into a taxicab—and it would require courts to
indulge in unrealistic second-guessing.

Id. (quotation omitted); see also Moffatt, 450 N.W.2d 116, 119 (Minn. 1990) (“The fact
that the police in a given case might have investigated the case in a different way arguably
taking less time does not mean that the police acted unreasonably.”). Given the subsequent
interpretations of Florida v. Royer, we cannot agree with Bolch.
Second, we disagree with Bolch because the objective facts would warrant a person
of reasonable caution to believe that the action take n in this case was appropriate. To be
reasonable, the basis for intrusion “must satisfy an objective test: would the facts availab le
to the officer at the moment of the seizure warrant a [person] of reasonable caution in the
belief that the action taken was appropriate.” Askerooth, 681 N.W.2d at 364 (quotatio ns
omitted). Whether the action was appropriate “is based on a balancing of the government ’s

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need to search or seize and the individual’s right to personal security free from arbitrary
interference by law officers.” Id. at 365 (quotation omitted). “[I]t is the state ’s burden to
show that a seizure was sufficiently limited to satisfy these conditions.” Id. “A court
reviewing whether the police acted diligently and reasonably should not indulge in
unrealistic second-guessing.” Moffatt, 450 N.W.2d at 119.
In this case, it was late at night and, prior to the initial encounter, Bolch did not
respond when Gaul activated his emergency lights. After Bolch turned into a driveway,
Gaul finally caught up to the vehicle. U pon approaching the vehicle, Gaul immediately
detected the odor of alcohol but could not determine if the odor was coming from Bolch ’s
breath, his person, or the vehicle. To continue his investigation, Gaul needed to isolate the
source of the odor of alcohol. While Bolch postulates that Gaul cou ld have isolated the
source of the odor by other means, such as having Bolch stand outside and away from the
vehicle, it is unclear if this would have created enough space to isolate the odor from the
vehicle. It is also unclear if Gaul would then have be en able to differentiate b etween an
odor emanating from B olch’s clothing or person and an odor emanating from his breath.
The circumstances surrounding the encounter, the need to place Bolch in a controlled
environment and the need for the investigating officer to remain close enough to Bolch to
smell his mouth, would make a person of reasonable caution conclude that the action
taken—requesting Bolch join him in the front seats of the patrol car —was appropriate .
Therefore, we conclude that Gaul ’s method o f investigation was reasonable under the
circumstances.

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II. DMT Breath-Test Results
Bolch argues that the district court erred when it admitted the DMT breath -test
results and when it sustained the commissioner’s revocation of his driving privileges based
on those test results. We conclude that the district court did not abuse its discretion when
it admitted the test results and did not clearly err when it found that Bolch had an alcohol
concentration of 0.144.
A. Admission of DMT Results
District courts follow a multi -step process when deciding whether to admit a
chemical test result. Vondrachek v. Comm ’r of Pub. Safety , 906 N.W.2d 262, 272 (Minn.
App. 2017), review denied (Minn. Feb. 28, 2018). Initially, “[t]he commissioner must
make a prima facie case that the test is reliable and that its administration in the particular
instance conformed to the procedure ne cessary to ensure reliability. ” Id. (quotatio ns
omitted). “The commissioner meets his burd en by showing that a certified DMT operator
administered the test and that diagnostic checks showed that the DMT machine was in
working order and the chemicals used were in proper condition.” Id. (quotation omitted);
see also Minn. Stat. § 634.16 (2020) ( allowing admission of breath -test re sults without
expert testimony when test is “performed by a person who has been fully
trained . . . pursuant to training given or approved by the commissioner of public safety or
the commissioner’s acting agent ”).
After this initial step, “the driver must produce evidence suggesting why the test
was untrustworthy.” Vondrachek, 906 N.W.2d at 272 (quotation omitted). The evidence
presented by the driver must go “ beyond mere speculation that questions th e

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trustworthiness of the report” for th e district court to exclude the chemical -test results as
unreliable. Id. at 273 (quotation omitted). “The argument that something may have
occurred during observation to affect the test result is speculation and should not be used
without supporting evidence as the basis for rescinding a revocation.” Id. (quotatio n
omitted); see also Junker v. Comm’r of Pub. Safety , 925 N.W.2d 661, 66 3 (Minn. App.
2019) (“But even though Junker proved that he burped during the observation period, he
failed to demonstrate that the burping actually affected his breath -test results.”), review
denied (Minn. June 18, 2019). “The district court determines whether the test is admissib le
if its reliability is challenged.” Vondrachek, 906 N.W.2d at 272. “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.” Id. (quotation omitted). Moreover, “[t]he weight
and credibility to be given to the opinion of an expert lies with the factfinder.” State ex rel.
Trimble v. Hedman, 192 N.W.2d 432, 440 (Minn. 1971). When a trier of fact relies on the
opinion of one expert over that of another, “the decision of the [trier of fact] is not open to
review on appeal,” as long as that “opinion has a reasonable basis in fact .” Shymanski v.
Nash, 251 N.W.2d 854, 857 (Minn. 1977).
In this case, the district court concluded that the commissioner established a prima
facie case that the test was reliable because the commissioner ’s expert and Gaul’s
testimony established that Gaul, a certified DMT operator, followed BCA procedure.
Bolch then contested the reliability of the test results, presenting expert testimony regarding
dentures and the presence of mouth alcohol during the testing process. The commissio ner
also presented expert testimony. Faced with conflicting expert testimony, the district court

13
gave more weight to the commissione r’s expert. We conclude that the commissioner ’s
expert opinion has a reasonable basis in fact. For example, the expert currently maintains,
repairs, and certifies instruments for breath testing, including the DMT. She also trains
officers on how to administer breath tests accurately. Her opinions that mouth alcohol will
dissipate within 15 minutes and that the 1992 study was relevant were based on her
experience. In addition, she opined that the test result in this case was reliable based on
the two ot her safeguards that were in place during this test. The DMT ’s negative slope
detector did not indicate the presence of mouth alcohol and the two tests were separated by
only 0.004, well within the 0.02 standard. Finally, Bolch ’s expert acknowledged that his
opinion was premised on the possibility that Bolch’s dentures may have contained food
particles. See Junker, 925 N.W.2d at 664; Vondrachek, 906 N.W.2d at 273. This opinio n
carries less weight in light of Bolch’s testimony that he did not eat or drink anything after
being arrested. In fact, Bolch could not recall how much time had passed since he last ate
or drank anything, and there is no evidence in the record that there was food in his dentures
during the testing process. For these reasons, we con clude that the district court did not
abuse its discretion in admitting the test results because the commissioner’s expert opinio n
had a reasonable basis in fact.
B. Alcohol Concentration Findings
Bolch also argues that even assuming that the test results were reliable enough to be
admitted, they were not reliable enough to support the district court’s factual finding that
Bolch’s breath sample had an alcohol concentration of 0.144. Again, we are not persuaded.

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We will not set aside t he district court ’s findings of f act unless they are clearly
erroneous. Jasper v. Comm ’r of Pub. Safety , 642 N.W.2d 435, 440 (Minn. 2002) . “We
hold findings of fact as clearly erroneous only when we are left with a definite and firm
conviction that a mistake has been committed. When findings of fact rest almost entirely
on expert testimony, the district court ’s evaluation of credibility is of particular
significance.” Id. (quotation and citation omitted).
In this case, the district court found that Bolch ’s alcohol concentr ation was 0.144
based on the expert testimony and the DMT test results themselves. For the reasons noted
above regarding reliability for admission, the commissioner ’s expert ’s testimony also
provides a sufficient basis for the district court to accept the accuracy of the reported DMT
test results. The test was administered with all three safeguards in place. Gaul observed
Bolch for over 20 minutes and did not observe Bolch belch, burp, vomit, eat, or drink. Gaul
also did not observe any foreign objects in Bolch’s mouth. The negative slope detector did
not indicate the presence of mouth alcohol, and the two tests fell well within the range of
reliable results. Moreover, Bolch did not testify that he burped or vomited, that he recalled
having food particles in his dentures, or that he had anything to eat or drink. Based on the
evidence presented, w e are not left with a firm conviction that a mistake has been made,
and we affirm the district court’s factual finding that the alcohol concentration of Bolch ’s
breath was 0.144, exceeding the legal limit.
Affirmed.