1.1                          A bill for an act 
  1.2             relating to public safety; modifying provisions 
  1.3             relating to DWI breath-testing instruments; amending 
  1.4             Minnesota Statutes 2002, sections 169A.03, subdivision 
  1.5             11; 169A.45, subdivision 4; 169A.51, subdivision 5; 
  1.6             169A.75; 360.0753, subdivision 4; 634.16. 
  1.7   BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF MINNESOTA: 
  1.8      Section 1.  Minnesota Statutes 2002, section 169A.03, 
  1.9   subdivision 11, is amended to read: 
  1.10     Subd. 11.  [INFRARED OR OTHER APPROVED BREATH-TESTING 
  1.11  INSTRUMENT.] "Infrared or other approved breath-testing 
  1.12  instrument" means a breath-testing instrument that employs 
  1.13  infrared or other technology and has been approved by the 
  1.14  commissioner of public safety for determining alcohol 
  1.15  concentration.  
  1.16     Sec. 2.  Minnesota Statutes 2002, section 169A.45, 
  1.17  subdivision 4, is amended to read: 
  1.18     Subd. 4.  [OTHER COMPETENT EVIDENCE ADMISSIBLE.] The 
  1.19  preceding provisions do not limit the introduction of any other 
  1.20  competent evidence bearing upon the question of whether the 
  1.21  person violated section 169A.20 (driving while impaired) or 
  1.22  169A.31 (alcohol-related school bus or Head Start bus driving), 
  1.23  including tests obtained more than two hours after the alleged 
  1.24  violation and results obtained from partial tests on an infrared 
  1.25  or other approved breath-testing instrument.  A result from a 
  1.26  partial test is the measurement obtained by analyzing one 
  2.1   adequate breath sample, as described in section 169A.51, 
  2.2   subdivision 5, paragraph (b) (breath test using infrared or 
  2.3   other approved breath-testing instrument).  
  2.4      Sec. 3.  Minnesota Statutes 2002, section 169A.51, 
  2.5   subdivision 5, is amended to read: 
  2.6      Subd. 5.  [BREATH TEST USING ~~INFRARED~~ APPROVED 
  2.7   BREATH-TESTING INSTRUMENT.] (a) In the case of a breath test 
  2.8   administered using an infrared or other approved breath-testing 
  2.9   instrument, the test must consist of analyses in the following 
  2.10  sequence:  one adequate breath-sample analysis, one ~~calibration~~ 
  2.11  ~~standard~~ control analysis, and a second, adequate breath-sample 
  2.12  analysis. 
  2.13     (b) In the case of a test administered using an infrared or 
  2.14  other approved breath-testing instrument, a sample is adequate 
  2.15  if the instrument analyzes the sample and does not indicate the 
  2.16  sample is deficient. 
  2.17     (c) For purposes of section 169A.52 (revocation of license 
  2.18  for test failure or refusal), when a test is administered using 
  2.19  an infrared or other approved breath-testing instrument, failure 
  2.20  of a person to provide two separate, adequate breath samples in 
  2.21  the proper sequence constitutes a refusal. 
  2.22     (d) For purposes of section 169A.52 (revocation of license 
  2.23  for test failure or refusal), when a test is administered using 
  2.24  an infrared or other approved breath-testing instrument, a 
  2.25  breath test consisting of two separate, adequate breath samples 
  2.26  within 0.02 alcohol concentration is acceptable.  A breath test 
  2.27  consisting of two separate, adequate breath samples failing to 
  2.28  meet this criterion is deficient. 
  2.29     (e) If the first breath test is deficient, as defined by 
  2.30  paragraph (d), a second breath test must be administered. 
  2.31     (f) Two deficient breath tests, as defined by paragraph 
  2.32  (d), constitute a refusal. 
  2.33     Sec. 4.  Minnesota Statutes 2002, section 169A.75, is 
  2.34  amended to read: 
  2.35     169A.75 [IMPAIRED DRIVING-RELATED RULES.] 
  2.36     (a) The commissioner may ~~promulgate~~ adopt rules to carry 
  3.1   out the provisions of this chapter.  The rules may include ~~forms~~ 
  3.2   the format for notice of intention to revoke that describe 
  3.3   clearly the right to a hearing, the procedure for requesting a 
  3.4   hearing, and the consequences of failure to request a 
  3.5   hearing; ~~forms~~ the format for revocation and notice of 
  3.6   reinstatement of driving privileges as provided in section 
  3.7   169A.55; and ~~forms~~ the format for temporary licenses. 
  3.8      (b) Rules ~~promulgated~~ adopted pursuant to this section are 
  3.9   subject to ~~sections 14.01 to 14.20 and 14.365 to 14.69~~ the 
  3.10  procedures in chapter 14 (Administrative Procedure Act). 
  3.11     (c) Additionally, the commissioner may adopt rules 
  3.12  indicating the commissioner's approval of instruments for 
  3.13  preliminary screening or chemical tests for intoxication under 
  3.14  sections 169A.41 and 169A.51 using the procedures specified in 
  3.15  section 14.389 (expedited process). 
  3.16     Sec. 5.  Minnesota Statutes 2002, section 360.0753, 
  3.17  subdivision 4, is amended to read: 
  3.18     Subd. 4.  [BREATH TEST USING INFRARED BREATH-TESTING 
  3.19  INSTRUMENT.] (a) In the case of a breath test administered using 
  3.20  an infrared or other approved breath-testing instrument, as 
  3.21  defined in section 169A.03, subdivision 11, the test shall 
  3.22  consist of analyses in the following sequence:  one adequate 
  3.23  breath sample analysis, one ~~calibration standard~~ control 
  3.24  analysis, and a second, adequate breath sample analysis.  
  3.25     (b) In the case of a test administered using an infrared or 
  3.26  other approved breath-testing instrument, a sample is adequate 
  3.27  if the instrument analyzes the sample and does not indicate the 
  3.28  sample is deficient.  
  3.29     (c) For purposes of this section, when a test is 
  3.30  administered using an infrared or other approved breath-testing 
  3.31  instrument, failure of a person to provide two separate, 
  3.32  adequate breath samples in the proper sequence constitutes a 
  3.33  refusal. 
  3.34     Sec. 6.  Minnesota Statutes 2002, section 634.16, is 
  3.35  amended to read: 
  3.36     634.16 [ADMISSION INTO EVIDENCE OF RESULTS OF ~~INFRARED~~ 
  4.1   ~~BREATH-TESTS~~ APPROVED BREATH TESTS.] 
  4.2      In any civil or criminal hearing or trial, the results of 
  4.3   ~~an infrared breath-test~~ a breath test, when performed by a 
  4.4   person who has been fully trained in the use of an infrared or 
  4.5   other approved breath-testing instrument, as defined in section 
  4.6   169A.03, subdivision 11, pursuant to training given or approved 
  4.7   by the commissioner of public safety or the commissioner's 
  4.8   acting agent, are admissible in evidence without antecedent 
  4.9   expert testimony that an infrared or other approved 
  4.10  breath-testing instrument provides a trustworthy and reliable 
  4.11  measure of the alcohol in the breath.