
    STATE of Minnesota, Appellant, v. Jack Franklin HALLFIELDER, Respondent.
    No. C6-85-1396.
    Court of Appeals of Minnesota.
    Oct. 29, 1985.
    Review Denied Dec. 19, 1985.
    Hubert H. Humphrey, III, Atty. Gen., St. Paul, Philip J. Sorenson, Asst. City Atty., William Dinan, Duluth City Atty., Duluth, for appellant.
    Mark A. Munger, MacDonald, Munger & Downs, Duluth, for respondent.
    Heard, considered and decided by POPO-VICH, C.J., and WOZNIAK and HUSPE-NI, JJ.
   OPINION

WOZNIAK, Judge.

This is an appeal by the State of Minnesota from a pretrial order preventing the State from charging respondent Jack Hall-fielder with driving with an alcohol concentration of 0.10 or more. We affirm.

FACTS

Duluth police officers arrested Hallfielder for D.W.I. The intoxilyzer test for alcohol concentration resulted in one adequate sample of .216 and one deficient sample of .207. Hallfielder brought a motion seeking to preclude the State from proving at trial, through the use of the partial test, that he had violated Minn.Stat. § 169.121, subd. 1(d) (1984), by driving with an alcohol concentration of 0.10 or more.

ISSUE

May a partial intoxilyzer test be used to prove a violation of Minn.Stat. § 169.121, subd. 1(d) (1984)?

ANALYSIS

Minn.Stat. § 169.121, subd. 1(d) (1984) provides that it is a misdemeanor for a person to drive with an alcohol concentration of 0.10 or more. Minn.Stat. § 169.123 (1984) requires two adequate breath samples for a valid intoxilyzer test. Id. at subd. 2b(a); Godderz v. Commissioner of Public Safety, 369 N.W.2d 606, 607 (Minn.Ct.App.1985). In Godderz, we stated that a partial test cannot be used in a criminal D.W.I. prosecution to establish an alcohol concentration of 0.10 or more. Id.

Appellant essentially requests us to reconsider that decision. We decline to do so. While § 169.121, subd. 2 does allow the use of a partial test to prove that someone is under the influence, Minn.Stat. § 169.121, subd. 1(a), it does not provide that a partial test can be used to establish 0.10 or more, id., subd. 1(d).

DECISION

The trial court did not err in precluding the State from using a partial intoxilyzer test to prove a violation of Minn.Stat. § 169.121, subd. 1(d). Respondent is awarded $750.00 in attorney’s fees for this appeal pursuant to Minn.R.Crim.P. 28.04, subd. 2(6).

Affirmed.  