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Office of the Revisor of Statutes

Key: (1) language to be deleted (2) new language

                            CHAPTER 96-S.F.No. 1158 
                  An act relating to public safety; modifying provisions 
                  relating to DWI breath-testing instruments; amending 
                  Minnesota Statutes 2002, sections 169A.03, subdivision 
                  11; 169A.45, subdivision 4; 169A.51, subdivision 5; 
                  169A.75; 360.0753, subdivision 4; 634.16. 
        BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF MINNESOTA: 
           Section 1.  Minnesota Statutes 2002, section 169A.03, 
        subdivision 11, is amended to read: 
           Subd. 11.  [INFRARED OR OTHER APPROVED BREATH-TESTING 
        INSTRUMENT.] "Infrared or other approved breath-testing 
        instrument" means a breath-testing instrument that employs 
        infrared or other technology and has been approved by the 
        commissioner of public safety for determining alcohol 
        concentration.  
           Sec. 2.  Minnesota Statutes 2002, section 169A.45, 
        subdivision 4, is amended to read: 
           Subd. 4.  [OTHER COMPETENT EVIDENCE ADMISSIBLE.] The 
        preceding provisions do not limit the introduction of any other 
        competent evidence bearing upon the question of whether the 
        person violated section 169A.20 (driving while impaired) or 
        169A.31 (alcohol-related school bus or Head Start bus driving), 
        including tests obtained more than two hours after the alleged 
        violation and results obtained from partial tests on an infrared 
        or other approved breath-testing instrument.  A result from a 
        partial test is the measurement obtained by analyzing one 
        adequate breath sample, as described in section 169A.51, 
        subdivision 5, paragraph (b) (breath test using infrared or 
        other approved breath-testing instrument).  
           Sec. 3.  Minnesota Statutes 2002, section 169A.51, 
        subdivision 5, is amended to read: 
           Subd. 5.  [BREATH TEST USING INFRARED APPROVED 
        BREATH-TESTING INSTRUMENT.] (a) In the case of a breath test 
        administered using an infrared or other approved breath-testing 
        instrument, the test must consist of analyses in the following 
        sequence:  one adequate breath-sample analysis, one calibration 
        standard control analysis, and a second, adequate breath-sample 
        analysis. 
           (b) In the case of a test administered using an infrared or 
        other approved 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 section 169A.52 (revocation of license 
        for test failure or refusal), when a test is administered using 
        an infrared or other approved breath-testing instrument, failure 
        of a person to provide two separate, adequate breath samples in 
        the proper sequence constitutes a refusal. 
           (d) For purposes of section 169A.52 (revocation of license 
        for test failure or refusal), when a test is administered using 
        an infrared or other approved breath-testing instrument, a 
        breath test consisting of two separate, adequate breath samples 
        within 0.02 alcohol concentration is acceptable.  A breath test 
        consisting of two separate, adequate breath samples failing to 
        meet this criterion is deficient. 
           (e) If the first breath test is deficient, as defined by 
        paragraph (d), a second breath test must be administered. 
           (f) Two deficient breath tests, as defined by paragraph 
        (d), constitute a refusal. 
           Sec. 4.  Minnesota Statutes 2002, section 169A.75, is 
        amended to read: 
           169A.75 [IMPAIRED DRIVING-RELATED RULES.] 
           (a) The commissioner may promulgate adopt rules to carry 
        out the provisions of this chapter.  The rules may include forms 
        the format for notice of intention to revoke that describe 
        clearly the right to a hearing, the procedure for requesting a 
        hearing, and the consequences of failure to request a 
        hearing; forms the format for revocation and notice of 
        reinstatement of driving privileges as provided in section 
        169A.55; and forms the format for temporary licenses. 
           (b) Rules promulgated adopted pursuant to this section are 
        subject to sections 14.01 to 14.20 and 14.365 to 14.69 the 
        procedures in chapter 14 (Administrative Procedure Act). 
           (c) Additionally, the commissioner may adopt rules 
        indicating the commissioner's approval of instruments for 
        preliminary screening or chemical tests for intoxication under 
        sections 169A.41 and 169A.51 using the procedures specified in 
        section 14.389 (expedited process). 
           Sec. 5.  Minnesota Statutes 2002, section 360.0753, 
        subdivision 4, is amended to read: 
           Subd. 4.  [BREATH TEST USING INFRARED BREATH-TESTING 
        INSTRUMENT.] (a) In the case of a breath test administered using 
        an infrared or other approved breath-testing instrument, as 
        defined in section 169A.03, subdivision 11, the test shall 
        consist of analyses in the following sequence:  one adequate 
        breath sample analysis, one calibration standard control 
        analysis, and a second, adequate breath sample analysis.  
           (b) In the case of a test administered using an infrared or 
        other approved 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 or other approved 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 2002, section 634.16, is 
        amended to read: 
           634.16 [ADMISSION INTO EVIDENCE OF RESULTS OF INFRARED 
        BREATH-TESTS APPROVED BREATH TESTS.] 
           In any civil or criminal hearing or trial, the results of 
        an infrared breath-test a breath test, when performed by a 
        person who has been fully trained in the use of an infrared or 
        other approved breath-testing instrument, as defined in section 
        169A.03, subdivision 11, pursuant to training given or approved 
        by the commissioner of public safety or the commissioner's 
        acting agent, are admissible in evidence without antecedent 
        expert testimony that an infrared or other approved 
        breath-testing instrument provides a trustworthy and reliable 
        measure of the alcohol in the breath. 
           Presented to the governor May 23, 2003 
           Signed by the governor May 25, 2003, 9:40 p.m.