State of Minnesota, Respondent,

This opinion is nonprecedential except as provided by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
A22-0018

State of Minnesota,
Respondent,

vs.

Martha Sisay Abara,
Appellant.

Filed September 12, 2022
Affirmed in part and remanded
Halbrooks, Judge*

Dakota County District Court
File No. 19WS-CR-20-1640

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

Jerome M. Porter, Inver Grove Heights City Attorney, Meagan Kelley, Assistant City
Attorney, Campbell Knutson, P.A., Eagan, Minnesota (for respondent)

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

Considered and decided by Reilly, Presiding Judge; Reyes, Judge; and Halbrooks,
Judge.

* Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to
Minn. Const. art. VI, § 10.
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NONPRECEDENTIAL OPINION
HALBROOKS, Judge
Appellant challenges her conviction of driving while impaired (DWI), arguing that
the district court erred by instructing the jury not to evaluate the reliability of the
DataMaster (DMT) breath-testing machine. Because appellant failed to present evidence
challenging the reliability of the machine, the district court did not abuse its discretion by
providing the instruction. We therefore affirm the DWI conviction. However, we remand
for correction of the district court’s sentencing order.
FACTS
On February 2, 2020, a police officer arrested and cited appellant Martha Sisay
Abara with four counts: (1) fourth-degree DWI, (2) DWI—alcohol concentration of 0.08
or more, (3) DWI—under the influence of alcohol, and (4) petty-misdemeanor failure to
drive in a single lane. The state later dismissed count one, as it was based on “a penalty
statute . . . not a charging statute,” and the matter proceeded to a jury trial on the three
remaining counts.
The officer testified that he stopped Abara’s vehicle after seeing it drift out of its
lane. After approaching, the officer smelled alcohol and observed that Abara’s eyes were
red and watery. It was Super Bowl Sunday, and Abara admitted to drinking a beer “around
half-time.” The officer conducted three field sobriety tests and observed indicia of
intoxication during all three tests. He subsequently arrested Abara, transported her to the
police station, and administered a DMT breath test, which indicated an alcohol
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concentration of 0.15. The officer testified that he had been trained and certified to operate
the DMT machine.
During opening statements, the defense argued that the DMT machine was
“unreliable” and “not perfect.” But the defense did not present evidence at trial attacking
the reliability of the machine. Instead, defense counsel merely questioned the officer about
the machine and the testing process that occurred with Abara. During defense counsel’s
voir dire on foundational requirements, defense counsel asked some technical questions.
For example, defense counsel asked the officer about “infrared light absorption” as a means
for alcohol detection. The officer was not knowledgeable about the technical aspects of
the DMT machine. Defense counsel later asked, “[W]eren’t you instructed that acetone is
one of the things that can block infrared light?” The district court sustained the
prosecutor’s objection to that question, stating:
We’re not going to get into the engineering aspect of it
because he’s not qualified to talk about it. And the [j]ury is not
asked to make that determination.

So I’m going to make it clear. Ladies and gentlemen of
the [j]ury, your job is to determine whether or not this witness
has been certified to use this machine correctly. You are not
to determine whether or not the machine is reliable.

In other words, did this officer use the machine in the
way he was trained to use the machine to determine whether or
not the machine was working in the manner it was intended to
be used.

This witness is not an expert, he ’s not an engineer, and
we’re not getting into the physics of the machine, nor is that
your determination in making a decision whether the machine
is reliable; only whether the manner it was operated by this
operating officer was reliable on that date.
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Defense counsel asserted that her questions concerned the foundational
requirements for admission of the DMT results, and she objected to not being able to
question the officer “fully about his training.” The district court overruled that objection.
Prior to deliberations, the district court instructed the jury on the elements of DWI—
alcohol concentration of 0.08 or more:
Second element. Within two hours of the time the
defendant drove or operated a motor vehicle, the defendant’s
alcohol concentration was .08 or more. The defendant took a
breath test to determine alcohol concentration.

The state has introduced evidence of the testing method
used and the results of the test [that] was administered to the
defendant. You must evaluate the reliability of the testing
method and the test results in determining whether the
defendant’s alcohol concentration was .08 or more within two
hours of the time of driving.

So that goes back to my instruction yesterday. Going
back to this, you evaluate the reliability of the testing method,
and the test results, in determining whether the defendant’s
alcohol concentration was .08 or more within two hours of the
time of driving.

You are not to evaluate the [DMT] machine. That ’s
already been determined by the State of Minnesota as a
machine that can be used in testing people. So you’re not
looking at the machine and saying, they didn’t prove to us that
the machine was reliable. You’re looking at the element I just
read to you.

The defense objected to the instruction, and the district court overruled the
objection. The jury returned guilty verdicts on all three counts. The district court
immediately proceeded to sentencing, entered judgment of conviction on one of the DWI
counts, and stayed imposition of sentence.
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This appeal follows.
DECISION
Abara seeks reversal of her conviction and a new trial on the ground that the district
court erred by instructing the jury not to determine whether the DMT machine was reliable.
We review a district court’s jury instructions for an abuse of discretion. State v. Koppi ,
798 N.W.2d 358, 361 (Minn. 2011); State v. Mahkuk, 736 N.W.2d 675, 682 (Minn. 2007).
A district court abuses its discretion when an instruction “is based on an erroneous view of
the law or is against logic and the facts in the record.” State v. Montano, 956 N.W.2d 643,
649 (Minn. 2021) (quotation omitted). District courts are given “considerable latitude” in
selecting language for the jury instructions, but the instructions “may not materially
misstate the law.” State v. Baird, 654 N.W.2d 105, 113 (Minn. 2002). “ A mistaken jury
instruction does not require a new trial if the error was harmless. ” State v. Hall, 722
N.W.2d 472, 477 (Minn. 2006).
The relevant portion of the standard jury instruction, which the jury was given in
this case, instructed the jury to “evaluate the reliability of the testing method and the test
results in determining whether the defendant’s alcohol concentration was 0.08 or more
within two hours of the time of driving.” 10A Minnesota Practice, CRIMJIG 29.12 (2015).
The district court deviated from the standard instruction by adding the following language:
“You are not to evaluate the [DMT] machine. That’s already been determined by the State
of Minnesota as a machine that can be used in testing people. So you’re not looking at the
machine and saying, they didn’t prove to us that the machine was reliable.”
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“The question of whether a testing instrument is reliable is separate and distinct
from the question of how much weight a trier of fact should give to the test results.” In re
Source Code Evidentiary Hearings, 816 N.W.2d 525, 540 (Minn. 2012). The reliability of
a testing instrument is generally an evidentiary issue, a matter for consideration within the
context of admissibility. State v. Ards, 816 N.W.2d 679, 687 (Minn. App. 2012); see also
Source Code, 816 N.W.2d at 527 (“[T]he government established by a preponderance of
the evidence that Intoxilyzer 5000EN instruments . . . are reliable and unaffected by
alleged source code errors.”).
For purposes of admissibility, the proponent of a scientific test “must establish that
the test itself is reliable and that its administration in the particular instance conformed to
the procedure necessary to ensure reliability.” Ards, 816 N.W.2d at 687 (quotation
omitted). When performed by a trained person, the results of an approved breath test are
admissible without expert testimony that the testing instrument “provides a trustworthy and
reliable measure of the alcohol in the breath.” Minn. Stat. § 634.16 (2020). “Once a prima
facie showing of trustworthy administration has occurred, it is incumbent on the opponent
to suggest a reason why the test was untrustworthy.” Ards, 816 N.W.2d at 687 (quotation
omitted); see Source Code, 816 N.W.2d at 538 (noting parties’ reliance on burden-shifting
test). “Rebuttal of the state’s prima facie showing of admissibility of [approved testing]
results requires more than speculation that something might have occurred to invalidate
those results.” Ards, 816 N.W.2d at 687 (quotation omitted).
Abara concedes that the DMT machine at issue has been “approved by the
commissioner of public safety for determining alcohol concentration.” She further
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concedes that Minnesota law relaxes the foundational requirements for the admission of
DMT results and that the foundational requirements were met in this case. See Minn. Stat.
§ 634.16. She nonetheless argues that the district court erred because the reliability of a
testing machine remains an issue for a jury’s consideration even after a test is properly
admitted into evidence and that the jury in this case was misled or confused by the
additional instruction on the reliability of the machine.
We agree that the admission of a breath-test result does not foreclose the possibility
of challenging a testing machine and that “the reliability of the test” remains “an issue for
the jury.” Ards, 816 N.W.2d at 687 (quotation omitted). However, the district court in this
case specifically instructed the jury that it was to consider “the reliability of the testing
method and the test results.” The district court merely removed from the jury’s
consideration the issue of the machine. And Abara did not present any expert testimony
or evidence at trial to challenge the reliability of the machine. If a party fails to present
evidence challenging the reliability of a breath-test machine, a district court properly
exercises its discretion by instructing the jury not to consider that issue. See id. (noting
that after the admission of the test results, the burden shifted to the defendant “to show why
the test was not reliable”).
In Source Code, the district court excluded evidence challenging a breath-test
machine’s source code, and the supreme court upheld that ruling because the appellants
were given “ample process” during pretrial proceedings to challenge the testing machine’s
reliability based on alleged defects in the source code. 816 N.W.2d at 540. It is therefore
clear that a district court may remove from a jury’s consideration the issue of a machine’s
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reliability if the challenge to the reliability is baseless. Here, unlike in Source Code, in
which the appellants offered the testimony of numerous expert witnesses in challenging
the reliability of the breath-test machine, Abara failed to offer any meaningful challenge or
evidence. See id. at 531; see also Ards, 816 N.W.2d at 687 (stating that when a prima facie
showing of trustworthy administration has occurred, the opponent must provide a reason,
beyond mere speculation, why the test was untrustworthy). Under these circumstances, the
district court did not abuse its discretion by removing the issue of the DMT machine’s
reliability from the jury’s consideration.
At sentencing, the district court did not specify which of the DWI counts it was
entering a conviction on. The district court’s sentencing order is clearly incorrect, as it
indicates that a conviction was entered on count one, the dismissed count of fourth-degree
DWI. We therefore remand for correction of the sentencing order.
Affirmed in part and remanded.