McCormick v. Comm'r of Pub. Safety, A19-1466
| Decision Date | 04 May 2020 |
| Docket Number | A19-1466 |
| Citation | 945 N.W.2d 55 |
| Parties | John Noel MCCORMICK, petitioner, Appellant, v. COMMISSIONER OF PUBLIC SAFETY, Respondent. |
| Court | Minnesota Court of Appeals |
Robert M. Christensen, Robert M. Christensen, P.L.C., Minneapolis, Minnesota (for appellant)
Keith Ellison, Attorney General, Jacqueline A. Destache, Assistant Attorney General, St. Paul, Minnesota (for respondent)
Considered and decided by Bratvold, Presiding Judge; Reyes, Judge; and Bryan, Judge.
In this appeal from the district court's order sustaining the revocation of appellant's driving privileges, appellant argues that the district court incorrectly concluded that the breath-test advisory an officer read to him complied with Minn. Stat. § 169A.51, subd. 2 (2018), when the officer informed him that "refusal to take a test is a crime," not that "refusal to submit to a breath test is a crime." We affirm.
In April 2018, a police officer read a breath-test advisory to appellant John Noel McCormick upon probable cause that he had been driving while impaired. The officer stated that "[t]his is the breath test advisory of [appellant]" and that Appellant responded "Yes." The officer asked appellant if he would take a breath test, and he responded, "Sure." The breath test revealed an alcohol concentration above the legal limit.
The commissioner of public safety (commissioner) revoked appellant's driving privileges, and appellant filed a petition for judicial review. Appellant limited his implied-consent challenge to whether the officer properly informed him of his rights and the consequences of taking or refusing the test under Minn. Stat. § 169A.51, subd. 2. See Minn. Stat. § 169A.53, subd. 3(b)(6) (2018). The parties stipulated to the admission of the advisory the officer read to appellant, the video recording of the officer reading the advisory, and a transcript of that video. Neither party presented testimony. The parties submitted written briefs. The district court sustained the revocation of appellant's driving privileges, determining that the breath-test advisory the officer read did not violate Minn. Stat. § 169A.51, subd. 2, because the statute does not require a verbatim reading of its language. This appeal follows.
Did the district court properly conclude that the breath-test advisory the officer read to appellant complies with Minn. Stat. § 169A.51, subd. 2 ?
Appellant challenges the district court's order sustaining the revocation of his driving privileges, arguing that the officer failed to comply with Minn. Stat. § 169A.51, subd. 2, because the officer read a breath-test advisory that stated that refusal to submit to "a test" is a crime, when the statute provides that "refusal to submit to a breath test is a crime."1 We disagree.
Resolving this issue requires us to interpret the requirements of Minn. Stat. § 169A.51, subd. 2. We review questions of statutory interpretation de novo. Gray v. Comm'r of Pub. Safety , 918 N.W.2d 220, 223 (Minn. App. 2018). The first step of statutory interpretation is to determine whether the language of the statute is ambiguous. Larson v. State , 790 N.W.2d 700, 703 (Minn. 2010). A statute is ambiguous only when it has "more than one reasonable interpretation." State v. Fleck , 810 N.W.2d 303, 307 (Minn. 2012). If the statute is not ambiguous, we apply its plain and ordinary language and do not explore its purpose. See Dupey v. State , 868 N.W.2d 36, 39 (Minn. 2015).
(Emphases added.) A person may seek judicial review of a license revocation to raise the issue of whether the officer, at the time of the breath-test request, "inform[ed] the person of the person's rights and the consequences of taking or refusing the test as required by section 169A.51, subdivision 2." Minn. Stat. § 169A.53, subd. 3(b)(6).
Appellant does not argue that section 169A.51, subdivision 2, is ambiguous. Rather, he essentially argues that the statute requires officers to read its language verbatim. He asserts that the officer's failure to state "breath" directly before "test" misstated the law both because it is not a crime to refuse a warrantless blood or urine test2
and because it makes the word "breath" in section 169A.51, subdivision 2, meaningless, contrary to the legislature's intent.
The plain language of section 169A.51, subdivision 2, unambiguously requires officers to "inform" a person "that refusal to submit to a breath test is a crime." The statute does not define the word "inform." However, we may consider dictionary definitions when determining the plain meaning of a word. See In re Restorff , 932 N.W.2d 12, 19-21 (Minn. 2019). To "inform" means to "impart information to; make aware of something." The American Heritage Dictionary 899 (4th ed. 2000). To inform a person that refusal to submit to a breath test is a crime therefore requires that officers make the person aware that refusal to submit to a breath test is a crime.
Here, the district court found that the officer stated that "[t]his is the breath test advisory of [appellant]," stated that refusal to submit to "a test" is a crime, and asked appellant only if he wanted to take a breath test, without mentioning any other test. (Emphasis added.) Appellant does not dispute these findings, and the record supports them. Based on the context of the advisory that the officer gave to appellant, the officer informed appellant by making him aware that refusing to take the breath test, as the only test offered, would be a crime. The officer did not mention or request a blood or urine test
and therefore did not improperly inform appellant that refusal to submit to one of those tests is a crime.
Moreover, appellant points to no legal authority concluding that the implied-consent statute requires a verbatim recitation of section 169A.51, subdivision 2. The plain language does not require officers to "read" or "recite" the statute's language verbatim in order to inform a person that refusal to submit to a breath test is a crime.
We presume that the legislature understood the effect of using "inform" and of not using language requiring a verbatim recitation of the statute. See Dayton Hudson Corp. v. Johnson , 528 N.W.2d 260, 262 (Minn. App. 1995) (); cf., e.g. , Minn. Stat. § 270C.4451, subds. 3, 4 (2018) (); Minn. Stat. § 332B.11, subd. 2 (2018) (); Minn. Stat. § 144.6521 (2018) ().3 It is not the role of this court to read additional language into statutes. See State v. Noggle , 881 N.W.2d 545, 550 (Minn. 2016). When an officer fails entirely to read any advisory before asking a person to take a test, the results of the test may not serve as the basis of a license revocation pursuant to the implied-consent statute. Tyler , 368 N.W.2d at 280-81.4 But the officer here read the breath-test advisory.
We have upheld advisories that deviate from the language of the implied-consent statute so long as the information the officer provides is not misleading or confusing. In Hallock v. Comm'r of Pub. Safety , the officer added to the advisory, "Your decision whether or not to submit to testing is final and may not be changed following any conversation with your attorney." 372 N.W.2d 82, 83 (Minn. App. 1985). We concluded that this addition was not a misstatement of law or "so confusing as to render the advisory illegal." Id. In Connor v. Comm'r of Pub. Safety , we concluded that additional information the officer provided after the advisory that "refusal to take the test implies guilt" was not misleading or "so confusing as to render the advisory illegal." 386 N.W.2d 242, 244-45 (Minn. App. 1986) (citing Hallock , 372 N.W.2d at 83 ). Finally, in Dehn v. Comm'r of Pub. Safety , the driver contended that the officer's responses to her questions after providing the advisory stating that she would spend the night in jail unless she had cash bail or "bl[ew] a pass on this machine" rendered the advisory illegal and confusing. 394 N.W.2d 272, 274 (Minn. App. 1986). We concluded that the additional information provided by the officer did not render the advisory illegal because it was not "unduly coercive or confusing" and the appellant made no showing that the officer misled her. Id. Here, appellant does not claim that the advisory the officer read confused or misled him.
We "highly encourage[ ]" uniformity in breath-test advisories and "recommend that police officers read the exact words of the statute in order to avoid any possibility of confusion or improper deviation." See Hallock , 372 N.W.2d at 83. Although no previous published opinion has addressed the adequacy of a breath-test advisory stating that failure to...
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