Laws of Minnesota 1984 

                        CHAPTER 430-S.F.No. 1642
           An act relating to highway traffic regulations; 
          providing for breath tests to be administered using an 
          infrared breath-testing instrument for the purpose of 
          determining the presence of alcohol or a controlled 
          substance; authorizing the results of infrared 
          breath-tests to be admissible into evidence in civil 
          and criminal hearings; amending Minnesota Statutes 
          1982, sections 169.01, by adding a subdivision; 
          169.121, subdivision 6; 169.123, subdivisions 4, 5a, 
          and by adding a subdivision; Minnesota Statutes 1983 
          Supplement, sections 169.121, subdivision 2; 169.123, 
          subdivisions 2 and 3; proposing new law coded in 
          Minnesota Statutes, chapter 634. 
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF MINNESOTA: 
    Section 1.  Minnesota Statutes 1982, section 169.01, is 
amended by adding a subdivision to read: 
    Subd. 68.  [INFRARED BREATH-TESTING INSTRUMENT.] "Infrared 
breath-testing instrument" means a breath-testing instrument 
that employs infrared technology and has been approved by the 
commissioner of public safety for determining alcohol 
concentration.  
    Sec. 2.  Minnesota Statutes 1983 Supplement, section 
169.121, subdivision 2, is amended to read: 
    Subd. 2.  [EVIDENCE.] Upon the trial of any prosecution 
arising out of acts alleged to have been committed by any person 
arrested for driving, operating, or being in physical control of 
a motor vehicle in violation of subdivision 1, the court may 
admit evidence of the amount of alcohol or a controlled 
substance in the person's blood, breath, or urine as shown by a 
medical or chemical an analysis of it those items, if the test 
is taken voluntarily or pursuant to section 169.123. 
    For the purposes of this subdivision: 
    (a) evidence that there was at the time an alcohol 
concentration of 0.05 or less is prima facie evidence that the 
person was not under the influence of alcohol; 
    (b) evidence that there was at the time an alcohol 
concentration of more than 0.05 and less than 0.10 is relevant 
evidence in indicating whether or not the person was under the 
influence of alcohol. 
    Evidence of the refusal to take a test is admissible into 
evidence in a prosecution under this section or an ordinance in 
conformity with it.  
    For purposes of this section and section 169.123, the 
result of an evidentiary test administered within two hours of 
the alleged violation is deemed to be the alcohol concentration 
at the time of the violation.  
    The foregoing provisions do not limit the introduction of 
any other competent evidence bearing upon the question whether 
or not the person was under the influence of alcohol or a 
controlled substance, including tests obtained more than two 
hours after the alleged violation and results obtained from 
partial tests on an infrared breath-testing instrument.  A 
result from a partial test is the measurement obtained by 
analyzing one adequate breath sample, as defined in section 5, 
paragraph (b). 
    Sec. 3.  Minnesota Statutes 1982, section 169.121, 
subdivision 6, is amended to read: 
    Subd. 6.  [PRELIMINARY SCREENING TEST.] When a peace 
officer has reason to believe from the manner in which a person 
is driving, operating, controlling, or acting upon departure 
from a motor vehicle, or has driven, operated, or controlled a 
motor vehicle, that the driver may be violating or has violated 
subdivision 1, he may require the driver to provide a sample of 
his breath for a preliminary screening test using a device 
approved by the commissioner of public safety for this purpose.  
The results of this preliminary screening test shall be used for 
the purpose of deciding whether an arrest should be made and 
whether to require the chemical tests authorized in section 
169.123, but shall not be used in any court action except to 
prove that a chemical test was properly required of a person 
pursuant to section 169.123, subdivision 2.  Following the 
screening test additional tests may be required of the driver 
pursuant to the provisions of section 169.123. 
    The driver who refuses to furnish a sample of his breath is 
subject to the provisions of section 169.123 unless, in 
compliance with section 169.123, he submits to a blood, breath 
or urine test to determine the presence of alcohol or a 
controlled substance.  
    Sec. 4.  Minnesota Statutes 1983 Supplement, section 
169.123, subdivision 2, is amended to read: 
    Subd. 2.  [IMPLIED CONSENT; CONDITIONS; ELECTION AS TO TYPE 
OF TEST.] (a) Any person who drives, operates, or is in physical 
control of a motor vehicle within this state consents, subject 
to the provisions of this section and section 169.121, to a 
chemical test of his blood, breath, or urine for the purpose of 
determining the presence of alcohol or a controlled substance.  
The test shall be administered at the direction of a peace 
officer.  The test may be required of a person when an officer 
has reasonable and probable grounds to believe the person was 
driving, operating, or in physical control of a motor vehicle in 
violation of section 169.121 and one of the following conditions 
exist:  (1) the person has been lawfully placed under arrest for 
violation of section 169.121, or an ordinance in conformity with 
it; or (2) the person has been involved in a motor vehicle 
accident or collision resulting in property damage, personal 
injury, or death; or (3) the person has refused to take the 
screening test provided for by section 169.121, subdivision 6; 
or (4) the screening test was administered and recorded an 
alcohol concentration of 0.10 or more.  No action may be taken 
against the person for declining to take a direct blood test, if 
offered, unless an alternative test was offered. 
    (b) At the time a chemical test specimen is requested, the 
person shall be informed: 
    (1) that if testing is refused, the person's right to drive 
will be revoked for a minimum period of six months;  
    (2) that if a test is taken and the results indicate that 
the person is under the influence of alcohol or a controlled 
substance, the person will be subject to criminal penalties and 
the person's right to drive may be revoked for a minimum period 
of 90 days;  
    (3) that the person has a right to consult with an attorney 
but that this right is limited to the extent that it cannot 
unreasonably delay administration of the test or the person will 
be deemed to have refused the test;  
    (4) that after submitting to testing, the person has the 
right to have additional tests made by a person of his own 
choosing; and 
    (5) that if he refuses to take a test, the refusal will be 
offered into evidence against him at trial. 
    Sec. 5.  Minnesota Statutes 1982, section 169.123, is 
amended by adding a subdivision to read: 
    Subd. 2b.  [BREATH TEST USING AN INFRARED BREATH-TESTING 
INSTRUMENT.] (a) In the case of a breath test administered using 
an infrared breath-testing instrument, the test shall consist of 
analyses in the following sequence: one adequate breath sample 
analysis, one calibration standard analysis, and a second, 
adequate breath sample analysis. 
    (b) In the case of a test administered using an infrared 
breath-testing instrument, a sample is adequate if the 
instrument analyzes the sample and does not indicate the sample 
is deficient. 
     (c) For purposes of this section when a test is 
administered using an infrared breath-testing instrument, 
failure of a person to provide two separate, adequate breath 
samples in the proper sequence constitutes a refusal. 
    Sec. 6.  Minnesota Statutes 1983 Supplement, section 
169.123, subdivision 3, is amended to read: 
    Subd. 3.  [MANNER OF MAKING TEST; ADDITIONAL TESTS.] Only a 
physician, medical technician, physician's trained mobile 
intensive care paramedic, registered nurse, medical technologist 
or laboratory assistant acting at the request of a peace officer 
may withdraw blood for the purpose of determining the presence 
of alcohol or controlled substance.  This limitation does not 
apply to the taking of a breath or urine specimen sample.  The 
person tested has the right to have a person of his own choosing 
administer a chemical test or tests in addition to any 
administered at the direction of a peace officer; provided, that 
the additional test specimen sample on behalf of the person is 
obtained at the place where the person is in custody, after the 
test administered at the direction of a peace officer, and at no 
expense to the state.  The failure or inability to obtain an 
additional test or tests by a person shall not preclude the 
admission in evidence of the test taken at the direction of a 
peace officer unless the additional test was prevented or denied 
by the peace officer.  The physician, medical technician, 
physician's trained mobile intensive care paramedic, medical 
technologist, laboratory assistant or registered nurse drawing 
blood at the request of a peace officer for the purpose of 
determining alcohol concentration shall in no manner be liable 
in any civil or criminal action except for negligence in drawing 
the blood.  The person administering a breath test shall be 
fully trained in the administration of breath tests pursuant to 
training given by the commissioner of public safety. 
    Sec. 7.  Minnesota Statutes 1982, section 169.123, 
subdivision 4, is amended to read: 
    Subd. 4.  [REFUSAL, CONSENT TO PERMIT TEST; REVOCATION OF 
LICENSE.] If a person refuses to permit chemical testing a test, 
none shall be given, but the peace officer shall report the 
refusal to the commissioner of public safety and the authority 
having responsibility for prosecution of misdemeanor offenses 
for the jurisdiction in which the acts occurred.  If a person 
submits to chemical testing a test and the test results indicate 
an alcohol concentration of 0.10 or more, the results of the 
test shall be reported to the commissioner of public safety and 
to the authority having responsibility for prosecution of 
misdemeanor offenses for the jurisdiction in which the acts 
occurred. 
    Upon certification by the peace officer that there existed 
reasonable and probable grounds to believe the person had been 
driving, operating, or in physical control of a motor vehicle 
while under the influence of alcohol or a controlled substance 
and that the person refused to submit to chemical testing a 
test, the commissioner of public safety shall revoke the 
person's license or permit to drive, or his nonresident 
operating privilege, for a period of six months. Upon 
certification by the peace officer that there existed reasonable 
and probable grounds to believe the person had been driving, 
operating or in physical control of a motor vehicle while under 
the influence of alcohol or a controlled substance and that the 
person submitted to chemical testing a test and the test results 
indicate an alcohol concentration of 0.10 or more, the 
commissioner of public safety shall revoke the person's license 
or permit to drive, or his nonresident operating privilege, for 
a period of 90 days. 
     If the person is a resident without a license or permit to 
operate a motor vehicle in this state, the commissioner of 
public safety shall deny to the person the issuance of a license 
or permit for the same period after the date of the alleged 
violation as provided herein for revocation, subject to review 
as hereinafter provided. 
    Sec. 8.  Minnesota Statutes 1982, section 169.123, 
subdivision 5a, is amended to read: 
    Subd. 5a.  [PEACE OFFICER AGENT FOR NOTICE OF REVOCATION.] 
On behalf of the commissioner of public safety a peace officer 
offering a chemical test or directing the administration of a 
chemical test shall serve immediate notice of intention to 
revoke and of revocation on a person who refuses to permit 
chemical testing a test or on a person who submits to a chemical 
test the results of which indicate an alcohol concentration of 
0.10 or more.  The officer shall take the license or permit of 
the driver, if any, and issue a temporary license effective only 
for 7 days.  The peace officer shall send the person's driver's 
license to the commissioner of public safety along with the 
certificate required by subdivision 4. 
     Sec. 9.  [634.16] [ADMISSION INTO EVIDENCE OF RESULTS OF 
INFRARED BREATH-TESTS.] 
     In any civil or criminal hearing or trial, the results of 
an infrared breath-test, when performed by a person who has been 
fully trained in the use of an infrared breath-testing 
instrument, as defined in section 1, pursuant to training given 
or approved by the commissioner of public safety or his acting 
agent, are admissible in evidence without antecedent expert 
testimony that an infrared breath-testing instrument provides a 
trustworthy and reliable measure of the alcohol in the breath. 
     Sec. 10.  [EFFECTIVE DATE.] 
    Sections 1 to 9 are effective the day after final enactment 
and apply to trials or hearings commenced on or after the 
effective date. 
    Approved April 23, 1984