Craig David Halicki, 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This opinion is nonprecedential except as provided by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
A21-1129

Craig David Halicki,
Appellant,

vs.

Commissioner of Public Safety,
Respondent.

Filed April 25, 2022
Affirmed
Bjorkman, Judge

Steele County District Court
File No. 74-CV-21-29

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

Keith Ellison, Attorney General, Nicholas R. Moen, Assistant Attorney General, St. Paul,
Minnesota (for respondent)

Considered and decided by Gaïtas, Presiding Judge; Bjorkman, Judge; and Frisch,
Judge.
NONPRECEDENTIAL OPINION
BJORKMAN, Judge
Appellant challenges the revocation of his driver’s license, arguing that the district
court abused its discretion by denying his motion to compel discovery of the breath-testing
device’s source code. We affirm.
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FACTS
Appellant Craig David Halicki was arrested on suspicion of driving while impaired.
He consented to an evidentiary breath test using the DataMaster DMT-G (DMT). Testing
revealed an alcohol concentration of 0.08 . Respondent Commissioner of Public Safety
revoked Halicki’s driver’s license pursuant Minnesota’s Implied Consent Law, Minn. Stat.
§§ 169A.50-.53 (2020). Halicki sought judicial review of the revocation and moved for
discovery of the DMT’s computer source code.1
Halicki argued that the source code is relevant to whether his test revealed an alcohol
concentration of 0.08 and whether the DMT testing method is valid and reliable. In support
of his motion, he submitted the testimony of Dr. Andreas Stolz and exhibits purporting to
show how an error in the source code could result in an erroneous DMT test result. In
opposition to the motion, the commissioner submitted his own exhibits, including Halicki’s
test results and an affidavit from forensic scientists in the Minnesota Bureau of Criminal
Apprehension supporting the veracity and reliability of DMT breath testing.
After an evidentiary hearing, t he district court denied Halicki’s motion and
sustained the revocation of his license. In its order, the district court principally determined
that it lacked jurisdiction to direct the requested discovery because Halicki’s challenge was
to the administrative rule authorizing use of the D MT, which parties must bring to this
court. See Minn. Stat. § 14.44 (2020) (stating that “[t]he validity of any rule may be

1 The district court initially granted Halicki’s motion, subject to a protective order. But
because the commissioner did not have an opportunity to respond to the motion, the district
court later revoked its order and set the motion on for a hearing.
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determined upon the petition for a declaratory judgment thereon, addressed to the court of
appeals . . . .”). But the district court also addressed the merits of Halicki’s discovery
request, concluding that nothing suggested that the particular DMT device used to test
Halicki’s breath malfunctioned or was improperly used; “Dr. Stolz is not a qualified expert
on breath testing or source code analysis”; and the commissioner did not possess the source
code as it “is under the exclusive control of Intoximeters, Inc.” Halicki appeals.
DECISION
Halicki solely challenges the denial of his motion for discovery of the source code.
Resolution of discovery issues is within the district court’s broad discretion. Underdahl v.
Comm’r of Pub. Safety (In re Comm’r of Pub. Safety), 735 N.W.2d 706, 711 (Minn. 2007)
(Underdahl I). A district court abuses its discretion when it makes findings of fact that
lack evidentiary support or improperly applies the law. Id.
I. The district court did not abuse its discretion by denying Halicki’s discovery
motion.

License-revocation proceedings are subject to the rules of civil procedure. Minn.
Stat. § 169A.53, subd. 2(d). The scope of these proceedings is limited to 12 specific issues.
Id., subd. 3(b). Prehearing discovery is required but limited to four areas; other discovery
is “available only upon order of the court.” Id., subd. 2(d). A party seeking other discovery
must demonstrate that the information requested “is relevant to any party’s claim or defense
and proportional to the needs of the case.” Minn. R. Civ. P. 26.02(b); see Abbott v. Comm’r
of Pub. Safety , 760 N.W.2d 920 , 926 (Minn. App. 2009) . The nonmandatory discovery
sought must bear on the validity and reliability of “the testing method used” and “the test
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results” in the case at hand. Minn. Stat. § 169A.53, subd. 3(b)(10); see also Abbott, 760
N.W.2d at 926 (concluding no abuse of discretion in denying discovery where the record
supported the district court ’s determination that t he Intoxilyzer 5000 breath -testing
device’s “source code would not shed light on Abbott’s test results”).
The DMT source code is not subject to mandatory discovery. Accordingly, the
focus of our analysis i s whether the district court abused its discretion by concluding the
source code is not relevant to Halicki’s claims or defenses. Halicki contends it is relevant
to determine whether the testing method was “valid and reliable” and whether the test
results were “acc urately evaluated,” as set out in Minn. Stat. § 169A.53, subd. 3(b)(10).
The commissioner asserts that Halicki did not make the requisite showing of relevance
because he did not provide evidence of potential error specific to his test.
As a preliminary matter, we address the district court’s determination that it lacked
jurisdiction to consider Halicki’s discovery motion. Our supreme court rejected this
conclusion in Underdahl I, reasoning that the presumptive reliability of a different breath-
testing device (the Intoxilyzer 5000) is subject to the district court’s jurisdiction because
Minn. Stat. § 169A.53, subd. 3(b)(10), of the implied-consent statute “specifically permits
a driver to challenge the reliability and accuracy of his or her test results.” 735 N.W.2d at
711. While the district court here erred in concluding otherwise, it addressed the merits of
Halicki’s motion, to which we now turn.
Halicki cites State v. Underdahl, 767 N.W.2d 677 (Minn. 2009) (Underdahl II), for
the proposition that the DMT source code is relevant to the validity and reliability of his
breath-test results . In Underdahl II, the supreme court considered two consolidated
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criminal cases in which the d istrict court ordered the State of Minnesota to produce the
source code for the Intoxilyzer 5000. 767 N.W.2d at 679. As to defendant Underdahl, the
supreme court concluded that the district court abused its discretion because Underdahl
“made no threshold evidentiary showing whatsoever” that the source code was relevant to
his guilt or innocence. Id. at 685. As to defendant Brunner, the supreme court discerned
no abuse of discretion because Brunner “submitted source code definitions, written
testimony of a computer s cience professor that explained issues surrounding the source
codes and their disclosure, and an example of a breath -test machine analysis and its
potential defects.” Id. at 686. Halicki asserts that he, like Brunner , sufficiently
demonstrated the relevance of the DMT source code to warrant discovery. We are not
persuaded for three reasons.
First, Halicki overlooks the significant distinction between the discovery afforded
in criminal and civil cases. In a criminal case, district courts may order d iscovery of any
information that “may relate to the guilt or innocence of the defendant.” Minn. R. Crim.
P. 9.01, subd. 2(3). In contrast, in an implied-consent case, the party seeking nonmandatory
discovery must show how the information sought bears on the validity and reliability of
the testing method used and the test results in the case at hand. Minn. Stat. § 169.53,
subd. 3(b)(10); Abbott, 760 N.W.2d at 925-26 (citing Minn. R. Civ. P. 26.02). Underdahl
II provides helpful context regarding the type of evidence courts consider in determining
the relevance of a breath -testing device’s source code . But it does not alter Halicki’s
burden to show that the source code is relevant to his claims and defenses regarding his
breath test or compel a conclusion that the district court abused its discretion.
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Second, we see no clear error in the district court’s finding that Dr. Stolz is not a
qualified expert on the topic of breath testing or the DMT source code. Halicki did not
expressly challenge this finding in his briefing. Generally, “issues not argued in briefs are
deemed waived on appeal. ” State v. Grecinger, 569 N.W.2d 189, 193 n.8 (Minn. 1997) .
But even if Halicki did not waive this challenge, the record supports the district court’s
finding regardi ng Dr. Stolz’s qualifications . Dr. Stolz is an associate professor at the
National Superconducting Cyclotron Laboratory at Michigan State University. He studies
rare isotopes and programs computer software to analyze measurements of these isotopes.
He testified about his general familiarity with source codes but acknowledged that his work
does not involve breath testing, source codes for breath-testing equipment, or the DMT. In
short, the record supports the district court’s finding that Dr. Stolz lacks expertise to
support Halicki’s request for discovery of the source code.
Third, the district court did not misapply the law or otherwise abuse its discretion in
determining that the evidence Halicki offered does not establish that the source code is
relevant to Halicki’s claims and de fenses. Halicki emphasizes that he submitted a law-
review article, two newspaper articles, an article from an academic journal, and the expert
report generated in State v. Chun, 943 A.2d 114 (N.J. 2008), which Brunner submitted in
support of his discovery motion in Underdahl II. None of these submissions shed light on
how the DMT source code is relevant to Halicki’s claims or defenses . The law -review
article does not discuss the DMT source code or any potential problems with it, instead
stating that “[m]a ny times, the greatest challenge is convincing the court that the source
code is relevant and material” before directing the reader to other secondary sources. The
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newspaper articles chronicle experiences working with and assessing the reliability of
breath-testing devices nationwide ; neither mentions the DMT ’s source code or anything
specific to Halicki’s test results. And while the academic article concludes the DMT is not
reliable at detecting the presence of mouth alcohol , Halicki does not contend that mouth
alcohol affected his test results. Finally, the Chun report concerned the source code for the
Alcotest 7110 Mk III, not the DMT.
Even if we consider Dr. Stolz’s testimony, we see no abuse of discretion by the
district court. Dr. Stolz testified that potential defects in the source code could impact
Halicki because his test revealed a n alcohol concentration of 0.08—precisely the level at
which driving is prohibited. But when asked whether “there [was] anything that was
different about the DMT . . . or the procedures used by the BCA in this case from every
other case in Minnesota ,” Dr. Stolz responded, “From the DMT case —or from the
instrument, no.” In other words, Dr. Stolz’s pro ffered testimony does not bear on the
reliability of Halicki’s testing or test results.
Because Halicki has not established that the district court abused its discretion by
determining that the DMT source co de is not relevant to his claims or defenses, we need
not decide whether the source code is in the commissioner’s possession or control. But we
note the commissioner’s assertion that the state’s contract with the entity that possesses the
source code—Intoximeters, Inc.—outlines procedures a litigant may follow to access the
DMT source code with the assistance of an expert qualified to review the information.

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II. The district court did not violate Halicki’s due-process rights.
In its discovery order, the district court expressed concern that Halicki’s lawyer may
have violated certain e thical duties. 2 Halicki asserts that these expressions reflect a
violation of his due-process rights. He offers no legal support for this contention, and we
construe this to be a claim of judicial bias. In reviewing such claims, we presume that
judges discharged their duties p roperly and focus our analysis on whether the judge
considered the arguments of all parties, ruled in favor of the complaining party on any
issue, and acted to minimize prejudice to th at party. See Cuypers v. State , 711 N.W.2d
100, 104 (Minn. 2006); State v. Mems , 708 N.W.2d 526, 533 (Minn. 2006). Previous
adverse rulings alone do not demonstrate judicial bias. Mems, 708 N.W.2d at 533. Rather,
judicial bias “must be proved in light of the record as a whole. ” Hannon v. State, 752
N.W.2d 518, 522 (Minn. 2008).
The record does not support a claim of judicial bias. The district court noted its
concerns about counsel only after making detailed findings of fact and stating that it
“diligently reviewed the more than 500 pages filed by [Halicki] in this matter, and all cited
law.” Indeed, the expressed concerns flow from the district court’s a ssessment that
Halicki’s arguments lacked precedential support. In other words, the district court
necessarily considered and decided the merits of Halicki’s arguments before denying his
motion.
Affirmed.

2 We were not asked to, and do not, comment on the district court’s concern regarding
counsel’s conduct.