State v. Norgaard, Minn.Ct.App., 6/5/2017. An officer stopped Mr. Norgaard for speeding; he refreshingly confessed to the officer that he'd just come from a bar and had consumed too much alcohol to be driving. Mr. Norgaard then agreed to take a breath test and scored an alcohol concentration of 0.13.
Mr. Norgaard waived a jury on his DWI charge and the court found him guilty. When the state offered the results of the DataMaster breathalyzer test Mr. Norgaard objected; he said that the state had failed to produce evidence about the reliability of that machine. The court responded by taking judicial notice that the commissioner of public safety had approved the DataMaster breathalyzer, and admitted the results.
There's a statute for that: Minn.Stat. 169A.03, subd. 11 (2014) permits the admission of any breath test performed by a fully trained individual using an approved breath-testing instrument. That same statute permits the commissioner of public safety to approve such instruments, and the commissioner has approved the DataMaster machine. The court says that this approval is a "legislative fact" rather than an "adjudicative fact" subject to the prohibition on judicial notice in a criminal case:
Judicial notice of adjudicative facts is not appropriate in criminal cases. See State v. Pierson, 368 N.W.2d 427, 434 (Minn. App. 1985). Adjudicative facts are facts about the parties, their activities, properties, motives, and intent. In re Guardianship of Doyle, 778 N.W.2d 342, 348 (Minn. App. 2010) (citing Minn. R. Evid. 201 1989 comm. cmt.). But courts regularly take notice of legislative facts, such as statutes, case law, and regulations, in criminal cases. Id
No comments:
Post a Comment