An Officer’s Opinion on Driver’s Impairment, Supported by Sufficient Observation, Is Admissible as Lay Person Evidence.

State v. Ards, Minn.Ct.App., 7/16/2012.  A St. Paul police officer stopped Mr. Ards, initially on poor driving but then arrested him on a DUI charge.  At the jail, Mr. Ards consented to a breath test.  The first test result was .131 with a replicate reading of .132.  The control reading was .083 and its replicate reading was .082.  The second breath test result was .119 with a replicate reading of .121.  Low score wins so the official reading was .11.

At the end of the state’s case, Mr. Ards requested a direct verdict of acquittal, arguing that because one of the control readings was outside of the acceptable variation range.  The trial judge denied the motion, saying that the evidence on the various results presented a fact question for the jury to sort out.  The jury convicted Mr. Ards.

On appeal, Mr. Ards presented two challenges, neither of which the trial court ruled upon, so the appellate standard of review is plain error.  First, he argued that allowing the officer to testify about his impairment was expert testimony on the ultimate issue for the jury, and that allowing the officer to testify that the Intoxilyzer test result was reliable was error.  On the testimony about the officer’s personal observations and opinion of intoxication, the appellate court points out that a lay person may testify to her opinion about a person’s intoxication, reaching back two centuries for case law to support that proposition.  McKillop v. Duluth St. Ry. Co., 53 Minn. 532, 537, 55 N.W. 739, 739 (1893).  More recently, only a half century ago, the Minnesota Supreme Court set out the foundation necessary for a lay person to opine about another’s intoxication:

observation of manner of walking and standing, manner of speech, appearance of eyes and face, and odor, if any, upon such person’s breath.

State v. Simonsen, 252 Minn. 315, 328, 89 N.W.2d 910, 918 (1958).  The officer’s opinion on Mr. Ard’s impairment was thus not an “expert” opinion and since Mr. Ards did not challenge the foundation evidence there was no error in admitting her testimony.  The court reached the same conclusion on the other part, the reliability of the Intoxilyzer.