Friedman v. Commissioner of Public Safety, No. C9-89-1708

CourtMinnesota Court of Appeals
Writing for the CourtGARDEBRING
Citation455 N.W.2d 93
PartiesJoy Marie FRIEDMAN, Petitioner, Appellant, v. COMMISSIONER OF PUBLIC SAFETY, Respondent.
Docket NumberNo. C9-89-1708
Decision Date08 May 1990

Page 93

455 N.W.2d 93
Joy Marie FRIEDMAN, Petitioner, Appellant,
v.
COMMISSIONER OF PUBLIC SAFETY, Respondent.
No. C9-89-1708.
Court of Appeals of Minnesota.
May 8, 1990.
Review Granted July 6, 1990.

Page 94

Syllabus by the Court

1. The Minnesota Constitution, article I, section 6, does not give appellant the right to consult with an attorney prior to deciding whether to submit to a chemical sobriety test.

2. The Minnesota Constitution, article I, section 7, does not require that appellant be given a Miranda-type warning prior to being asked to submit to testing, in order that evidence of her refusal may be used against her at trial.

3. The trial court was not clearly erroneous in determining appellant's refusal to submit to testing was not reasonable.

William R. Kennedy, Hennepin County Public Defender, Mark D. Fiddler, Asst. Public Defender, Minneapolis, for appellant.

Hubert H. Humphrey, III, Atty. Gen., Joseph Plumer, Sp. Asst. Atty. Gen., St. Paul, for respondent.

Considered and decided by RANDALL, P.J., and FOLEY and GARDEBRING, JJ.

OPINION

GARDEBRING, Judge.

Appellant Joy Marie Friedman was arrested for driving while under the influence and she refused to take a breath test pursuant to Minn.Stat. Sec. 169.123, subd. 2(a) (1988). Her driver's license was revoked for one year and she petitioned for judicial review. The trial court sustained the revocation and this appeal followed.

FACTS

On the evening of March 12, 1989, Minneapolis Police Officer Lance Ahlrich responded to a report of a possible personal injury accident. When he arrived on the scene, he encountered appellant. During the course of his investigation, appellant took and failed a preliminary breath test. Based on this and other indicia of intoxication, Ahlrich arrested appellant for DWI. He transported her to the Minneapolis Police Department chemical testing room.

Ahlrich read appellant the implied consent advisory, and asked appellant if she understood it. Appellant did not reply. Ahlrich reread the advisory, after which he asked appellant if she understood it. Again, appellant did not respond. Ahlrich read the advisory a third time, and asked appellant if she understood it. She did not reply. Ahlrich then asked her if she would submit to a breath test. Appellant did not reply. Ahlrich asked her why she was refusing testing. She stated, "I already took one in the car."

The officer told appellant that the test she had taken in the squad car had been a preliminary breath test and that she was still required to submit to an Intoxilyzer test. Appellant continued to repeat that she did not feel she had to submit to another test because she had already taken one. Ahlrich attempted to explain the difference between the two tests, but appellant continually interrupted him and stated that she did not feel she needed to take another test. She never agreed to take the test.

At the hearing, appellant testified that she was very confused because she was being told she had to take a second breath test. She claimed she told Officer Ahlrich she did not understand the implied consent advisory because of the words he used. She did not deny that Ahlrich had read her the implied consent advisory three separate times. She stated that the officers told her

Page 95

the test she had taken on the street "did not count" and that she would have to take another. She testified that she had taken the PBT at the scene of the accident because she was not intoxicated and she did not believe she would be arrested. She further testified that she needed the advice of counsel and that, had she had such advice, she would have taken the test. She also claimed that she had never told Officer Ahlrich that she would not take the test and that she was never offered the test.

The trial court concluded that appellant refused to submit to chemical testing and that she failed to show that at the time she refused, her refusal was based on reasonable grounds. It determined that the revocation procedure of Minn.Stat. Sec. 169.123 was not unconstitutional under the Minnesota Constitution, article I, section 6 or 7.

Friedman appeals.

ISSUES

1. Does article 1, section 6 of the Minnesota Constitution guarantee a person the right to consult with an attorney before deciding to submit to a chemical sobriety test?

2. Does article 1, section 7 of the Minnesota Constitution require that a person be given a Miranda warning prior to being asked to submit to a chemical sobriety test, in order to protect the person's right against self-incrimination?

3. Was the trial court clearly erroneous in finding appellant's refusal to submit to a breath test was not reasonable?

ANALYSIS

I.

The Minnesota Supreme Court held that a driver arrested for DWI has no statutory or federal constitutional right to consult with counsel before deciding whether to submit to chemical testing under Minn.Stat. Sec. 169.123, the implied consent law. Nyflot v. Commissioner of Public Safety, 369 N.W.2d 512, 513 (Minn.), appeal dismissed, 474 U.S. 1027, 106 S.Ct. 586, 88 L.Ed.2d 567 (1985). Appellant does not challenge this holding, but asserts her right to counsel arises under the Minnesota Constitution, article I, section 6. Appellant argues that Minn.Stat. Sec. 169.123, subd. 2(b)(4), requiring that a driver be advised of a right to counsel only after submitting to testing, is unconstitutional.

The majority opinion in Nyflot did not address state constitutional provisions. Justice Kelley, concurring specially, would have decided the issue solely on statutory grounds. Further, he believed that the state and federal constitutional provisions applied only to criminal proceedings, and that a constitutional discussion, when the proceeding is a civil one, is both irrelevant and premature. Nyflot, 369 N.W.2d at 518-19 (Kelley, J., concurring specially). The dissent, while analyzing the issue on federal constitutional and statutory grounds, referred to the Minnesota Constitution, stating that a "state is free to offer its citizens greater protection in its constitution than is offered by the federal law." Id. at 523 (Yetka, J., dissenting). Thus, the majority did not rule on the issue, and this court will do so herein.

The standard for determining the constitutionality of a statute is as follows:

[A] duly enacted statute carries with it a presumption of constitutionality. See Guilliams v. Comm'r of Revenue, 299 N.W.2d 138, 142 (Minn.1980). This court proceeds with great caution before declaring a statute unconstitutional, see McGuire v. C & L Restaurant, Inc., 346 N.W.2d 605, 611 (Minn.1984), and will do so only if the challenging party demonstrates beyond a reasonable doubt that it violates a constitutional provision. City of Richfield v. Local No. 1215, Int'l Ass'n of Fire Fighters, 276 N.W.2d 42, 45 (Minn.1979). Furthermore, in matters properly enacted by the legislature, this court must defer to that body's judgment.

State v. Hamm, 423 N.W.2d 379, 380 (Minn.1988).

The Minnesota Constitution, article I, section 6 provides in relevant part:

In all criminal...

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3 practice notes
  • Friedman v. Commissioner of Public Safety, No. C9-89-1708
    • United States
    • Supreme Court of Minnesota (US)
    • June 7, 1991
    ...but the revocation was sustained in an order by the district court. The district court was affirmed by the Minnesota Court of Appeals. 455 N.W.2d 93. We On the evening of March 12, 1989, Joy Friedman was arrested by a Minneapolis police officer for DWI following her failure of a preliminary......
  • McDonnell v. Commissioner of Public Safety, Nos. C6-90-53
    • United States
    • Minnesota Court of Appeals
    • October 2, 1990
    ...Constitution, noting that Andrews was of questionable precedential value in light of Nyflot. Friedman v. Comm'r of Public Safety, 455 N.W.2d 93, 98 (Minn.App.1990), pet. for rev. granted (Minn. July 6, 1990). We decline to interpret section 7 more broadly than the federal constitution as to......
  • State v. Berge, No. C8-90-1219
    • United States
    • Court of Appeals of Minnesota
    • January 8, 1991
    ...Court of Appeals until now. The rule of Andrews is good law in Minnesota. The majority refers to Friedman v. Comm'r of Pub. Safety, 455 N.W.2d 93 (Minn.App.1990), pet. for rev. granted (Minn. July 6, 1990), as authority for a reduction in the precedential value of Andrews. I disagree strong......
3 cases
  • Friedman v. Commissioner of Public Safety, No. C9-89-1708
    • United States
    • Supreme Court of Minnesota (US)
    • June 7, 1991
    ...but the revocation was sustained in an order by the district court. The district court was affirmed by the Minnesota Court of Appeals. 455 N.W.2d 93. We On the evening of March 12, 1989, Joy Friedman was arrested by a Minneapolis police officer for DWI following her failure of a preliminary......
  • McDonnell v. Commissioner of Public Safety, Nos. C6-90-53
    • United States
    • Minnesota Court of Appeals
    • October 2, 1990
    ...Constitution, noting that Andrews was of questionable precedential value in light of Nyflot. Friedman v. Comm'r of Public Safety, 455 N.W.2d 93, 98 (Minn.App.1990), pet. for rev. granted (Minn. July 6, 1990). We decline to interpret section 7 more broadly than the federal constitution as to......
  • State v. Berge, No. C8-90-1219
    • United States
    • Court of Appeals of Minnesota
    • January 8, 1991
    ...Court of Appeals until now. The rule of Andrews is good law in Minnesota. The majority refers to Friedman v. Comm'r of Pub. Safety, 455 N.W.2d 93 (Minn.App.1990), pet. for rev. granted (Minn. July 6, 1990), as authority for a reduction in the precedential value of Andrews. I disagree strong......

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