State v. BashawState v. Bashaw
- Reporters:
- , ,
- Before:
- Peterson
OPINION
PETERSON, Judge.On appeal from his conviction for driving with an alcohol concentration of 0.10 or more, Mark Bashaw argues that the district court erred in relying on
PACTS
At 6:25 p.m. on December 26, 1992, Jane Husman saw appellant Mark Bashaw’s car disabled on the side of the road and stopped to help. When Winona County Deputy Sheriff Ronald Ganrude arrived at the scene, Bashaw said that he was driving around a corner on an icy road when the car spun out, went into the ditch, and hit an embankment. Bashaw was able to get the car out of the ditch and drive a few more miles before it stopped.
Ganrude saw two or three empty beer cans in the ditch beside the ear. Deputy Tim O’Brien found four empty beer cans on the floor of the ear. Based on their observations of Bashaw and Bashaw’s failure to pass a field sobriety test, Ganrude and O’Brien both concluded that Bashaw was under the influence of alcohol. Bashaw agreed to take an intoxilyzer test. The test began at 8:24 p.m. The reported result was 0.12. Meanwhile, O’Brien went to the scene of the accident and found that the road was dry and covered with some sand.
At trial, Bashaw testified that he went to his brother-in-law’s farm at 11:30 a.m. on December 26, 1992 to celebrate Christmas with his wife’s family. Bashaw said that over the entire day, he drank four beers and half of a Tom and Jerry. The family ate around noon and then had sandwiches around 5:00 p.m. Bashaw said that he left the farm around 5:30 or 5:45 p.m. As he drove, Bash-aw was not paying attention to the road because he was arguing with his wife and his two children were arguing in the back seat. Bashaw said he hit a lot of sand on the road as he went around a corner and went into the ditch. He mistakenly thought the sand was ice. The ear hit an embankment and Bash-aw’s wife hit her head. Bashaw got the car out of the ditch and saw a hole in the radiator. He decided to drive home to get his other car and then take his wife to the hospital.
Bashaw said that the car stopped five or six miles from the accident scene because it ran out of coolant. Bashaw walked to a nearby friend’s house but no one responded to his knock. He then went back to try to start the car but the battery died. He was about to walk to another house when Hus-man arrived. Bashaw’s lawyer asked Bash-aw if he had consumed any alcohol after the accident and Bashaw said yes. When Bash-aw’s attorney asked how much alcohol Bash-aw had consumed, the state objected on grounds that notice of the defense of post-driving consumption of alcohol had not been given as required by
The defense made an offer of proof that Bashaw would have testified that he had consumed alcohol after the accident but before he stopped driving. The defense continued:
And what my expert would have testified to would be that in doing a retrograde [extrapolation test] from the .12 of the test, because it was done so late, I mean it was done, I would argue, more than 2 hours after the actual driving of [Bashaw], that for each beer he consumed at that late time of driving, that would reduce the .12to — take off .03 for each beer that he consumed. And he would have testified that he consumed at least a half of a can of [beer] and so that would have reduced it below a .10 level at the time of actual driving. His alcohol — blood alcohol concentration level, if it had been tested at that time, would have been below .10.
The district court held that
[T]he State says he drove in the ditch * * * because he was under the influence. Any drinking thereafter would have to be noticed to the State so that they are not ambushed by this defense. The statute clearly sets that out.
The court stated that the expert could testify about matters other than Bashaw’s postacci-dent drinking but the defense rested. The jury found Bashaw guilty of driving with an alcohol concentration of 0.10 or more but not guilty of driving while under the influence of alcohol or of driving with an alcohol concentration of 0.10 or more as measured within two hours of driving.
ISSUE
DidMinn.Stat. § 169.121 , subd. 2 (1992) require evidence of Bashaw’s postaccident drinking to be excluded because notice of this evidence was not given to the prosecution?
ANALYSIS
Generally, “[r]ulings on evidentiary matters rest within the sound discretion of the trial court.” Caldwell v. State, 347 N.W.2d 824, 826 (Minn.App.1984). Here, however, the district court found that
The object of statutory interpretation is to determine and give effect to the legislature’s intent.
(a) when the person is under the influence of alcohol;
⅜ ⅜ ⅝ ⅜ ⅜ *
(d) when the person’s alcohol concentration is 0.10 or more; [or]
(e) when the person’s alcohol concentration as measured within two hours of the time of driving is 0.10 or more.
If proven by a preponderance of the evidence, it shall be an affirmative defense to a violation of subdivision 1, clause (e), that the defendant consumed a sufficient quantity of alcohol after the time of actual driving, operating, or physical control of a motor vehicle and before the administration of the evidentiary test to cause the defendant’s alcohol concentration to exceed 0.10. Provided, that this evidence may not be admitted unless notice is given to the prosecution prior to the omnibus or pretrial hearing in the matter.
Bashaw argues that the district court erred in relying on
Here, the defense’s offer of proof demonstrates that the postaeeident drinking evidence was not offered to prove an affirmative defense to a violation of
The state has the burden of proving all the essential elements of an offense. Brechon, 352 N.W.2d at 750. An alcohol concentration of 0.10 or more is an essential element of the offense of driving with an alcohol concentration of 0.10 or more. 10A Minnesota Practice, CRIMJIG 29.08 (1990); see also Parker, 417 N.W.2d at 645 (state’s burden of proof for offense of driving with an alcohol concentration of 0.10 or more includes establishing that defendant’s alcohol concentration at time of driving was 0.10 or more). The evidence of Bashaw’s postaeeident drinking therefore tends to disprove an essential element of the offense of driving with an alcohol concentration of 0.10 or more, that Bashaw had an alcohol concentration over 0.10 when driving a motor vehicle. See Brechon, 352 N.W.2d at 749-50 (explaining distinction between affirmative defense, defense, and element of state’s case). Because the evidence of Bashaw’s postaeeident drinking was offered to disprove an essential element of the offense of violating
The state argues that its case was based on Bashaw’s preaecident driving and that when Bashaw got out of his car at the accident scene, he stopped driving. Therefore, any alcohol consumption after the accident is also consumption after the time of actual driving and the literal language of
Even if the jury considered only the driving that preceded the accident, the state still had the burden of showing that Bashaw’s alcohol concentration was 0.10 or greater when he was driving before the accident. The evidence of Bashaw’s alcohol consumption between the time of the accident and the time the intoxilyzer test was administered still would be evidence tending to disprove an essential element of the offense of driving with an alcohol concentration of 0.10 or more. Evidence of alcohol consumption after the accident and before the test tends to disprove that Bashaw’s alcohol concentration at the time of the test reflects his alcohol concentration before the accident.
whether, “assuming that the damaging potential of the [excluded evidence] were fully realized, a reviewing court might nonetheless say that the error was harmless beyond a reasonable doubt.”
Id. (alteration in original) (quoting Delaware v. Van Arsdall, 475 U.S. 673, 684, 106 S.Ct. 1431, 1438, 89 L.Ed.2d 674 (1986)).
Here, excluding evidence of Bash-aw’s postaccident drinking was not harmless. The expert would have relied on Bashaw’s postaccident drinking to testify that the retrograde extrapolation test showed Bashaw had an alcohol concentration of less than 0.10 at the time of driving. It is possible that the jury would have believed the expert’s testimony and acquitted Bashaw of the offense of driving with an alcohol concentration of 0.10. Because the verdict may have been different if evidence of Bashaw’s postaccident drinking and the retrograde extrapolation test had not been excluded, exclusion of this evidence was not harmless error.
DECISION
Reversed and remanded for a new trial.
Notes
. To give effect to