Mell v. Commissioner of Public Safety, No. A07-2372.

• Decision Date: 25 November 2008
• Docket Number: No. A07-2372.
• Citation: 757 N.W.2d 702
• Parties: Scott Jeffery MELL, petitioner, Appellant, v. COMMISSIONER OF PUBLIC SAFETY, Respondent.
• Court: Minnesota Court of Appeals

757 N.W.2d 702

Scott Jeffery MELL, petitioner, Appellant, v. COMMISSIONER OF PUBLIC SAFETY, Respondent.

No. A07-2372.

Court of Appeals of Minnesota.

November 25, 2008.

Chad P. Nelson, Chad P. Nelson Law Office, LLC, Lindstrom, MN, for appellant.

Lori Swanson, Attorney General, Jeffrey S. Bilcik, Assistant Attorney General, St. Paul, MN, for respondent.

Considered and decided by CONNOLLY, Presiding Judge; LANSING, Judge; and MINGE, Judge.

OPINION

MINGE, Judge.

Appellant challenges the decision sustaining his driver's license revocation under the implied-consent law, arguing that (1) there was not probable cause for his arrest for second-degree assault; (2) the arresting officer's invocation of the Minnesota implied-consent law was improper because it was based on an unauthorized preliminary breath test (PBT); and (3) his right to counsel was violated when he had only two minutes to use the telephone and telephone book before the deputy required the test. Because we conclude that the arrest was proper, the administration of the PBT by the county jail during booking was permissible, and appellant's right to counsel was not violated, we affirm.

FACTS

On February 14, 2007, at approximately 1:12 a.m., Chisago County deputy sheriffs Matt Beckman and Kyle Puelston separately responded to a call from Kevin Swanson, who reported that he was "in a vehicle being rammed on East Rush Lake." Deputy Beckman located Swanson in the middle of the frozen lake, about one-half mile from Flickerbirds Resort. Swanson's vehicle was extensively damaged, and Swanson appeared intoxicated. Swanson explained that appellant Scott Jeffrey Mell, while driving a white Chevrolet pickup with a plow on it (plow truck), had rammed Swanson's vehicle five or six times. Swanson suggested that the attack was motivated by their mutual animosity arising from appellant's marriage to Swanson's former wife.

Deputy Beckman radioed Deputy Puelston that the suspected vehicle was "[a] white Chevy pickup with a plow in front" and was being driven by appellant toward Flickerbirds, which is owned by appellant. Deputy Puelston arrived at the resort, went inside, and met with D.M., appellant's wife. D.M. explained that earlier that evening Swanson drove his vehicle off the frozen lake, into the resort's parking lot, and then back onto the lake. D.M. also stated that she had not seen her husband since dinner. Deputy Puelston then stepped outside Flickerbirds and observed a white Chevy pickup leave the parking lot and drive toward appellant's nearby residential driveway. He could not see if the truck had a snow plow. Deputy Puelston got into his car, caught up with the truck, and pulled into the driveway behind the truck as appellant stepped out of it. Appellant was driving, and no one else was in the truck.

Appellant told Deputy Puelston that he knew nothing of the ramming incident. Although the pickup that appellant was driving did not have a plow or any damage, the deputy saw another pickup through the windows of appellant's garage next to where the men were standing. This truck matched the suspect vehicle's description and had a plow on its front. Deputy Puelston asked appellant if he could look at the vehicle, and appellant said no. When Deputy Beckman arrived, he saw Deputy Puelston talking to appellant and noticed that appellant was argumentative. After a brief conversation, the deputies arrested appellant for second-degree assault. Although Deputy Puelston reported that he detected a faint odor of alcohol on appellant's breath, the deputy did not think that appellant was intoxicated, and neither officer conducted sobriety tests.

Deputy Puelston placed appellant in his car and brought him to the Chisago County jail.¹ Although he again noticed an odor of alcohol on appellant, he did not check for intoxication. At the jail, the jail staff required appellant to submit to a PBT as a part of the routine booking process. Deputy Puelston testified that this PBT is done to determine if an inmate is intoxicated and needs to be isolated from the general jail population. The PBT disclosed that appellant had an alcohol concentration of .146. Deputy Puelston saw the jailer conduct appellant's PBT and its results.

Based on his prior observations and the PBT results, Deputy Puelston decided that appellant had been driving while intoxicated. He read appellant the implied-consent advisory and asked appellant if he wanted to speak with an attorney. Appellant responded, "I don't think I can get a hold of him right now." Twice again the deputy asked appellant whether he wanted to talk to an attorney and received a similar response. At 2:51 a.m., Deputy Puelston made a telephone and telephone directories available to appellant in case he wanted to try to contact a lawyer. Appellant attempted one call to his wife, and, after failing to reach her, he hung up the telephone and walked over to the counter where Deputy Puelston was seated. Deputy Puelston then commented to the effect that appellant did not want to try to reach an attorney. Appellant replied, "Well, I can't get a hold of him. I don't know his number." Deputy Puelston stated, "Alright. We have been through this that you've been made aware that there's a phone book and a phone." Appellant said, "Right." Deputy Puelston asked. "And you don't want to call him at this time?" Deputy Puelston testified that appellant replied by nodding his head in the affirmative.

Deputy Puelston continued, "The time is 0253 hours. Will you take a breath test at this time?" Appellant replied, "No." When asked why he was refusing to take the test, appellant stated, "I don't know. Do you even have a right to ask me for it?" Deputy Puelston replied, "Well, according to Minnesota state statute, I do." The conversation ended with appellant saying, "That's fine. I don't think you have the right, so I'm like ..." and Deputy Puelston saying, "Alright. We'll be ending this recording at 0254 hours."

Deputy Puelston later testified that he believed that appellant was done attempting to contact an attorney because he did not make any effort to contact counsel beyond trying to call his wife and because he voluntarily hung up the telephone, returned to the counter where Deputy Puelston was positioned, and did not request or protest that he needed more time to contact counsel before making his decision to refuse the test.

Appellant's driver's license was revoked. Appellant subsequently filed a petition seeking judicial review of the revocation. After a hearing, the district court sustained the revocation of appellant's driving privileges. This appeal followed.

ISSUES

I. Did the deputies have probable cause to arrest appellant for second-degree assault under Minn.Stat. § 609.222, subd. 1 (2006)?

II. Was it improper for the law enforcement officers to use the results of the preliminary breath test as a basis for invoking the implied-consent law?

III. Was appellant's right to counsel violated?

ANALYSIS

I.

The first issue is whether there was probable cause to arrest appellant for second-degree assault. Appellant argues that probable cause did not exist for two reasons: first, the record does not support the district court's findings of fact and, second, there was not a reasonable basis to conclude that appellant was the individual who assaulted Swanson.

On appeal from a district court's finding that a police officer had probable cause to arrest, this court reviews findings of fact for clear error, giving "due weight to inferences drawn from those facts by [the district court]." State v. Lee, 585 N.W.2d 378, 382-83 (Minn.1998) (quoting Ornelas v. United States, 517 U.S. 690, 699, 116 S.Ct. 1657, 1663, 134 L.Ed.2d 911 (1996)). Findings are clearly erroneous "only if the reviewing court is left with the definite and firm conviction that a mistake has been made." Fletcher v. St. Paul Pioneer Press, 589 N.W.2d 96, 101 (Minn. 1999) (quotation omitted). This court independently reviews the facts to determine whether, as a matter of constitutional law, probable cause existed to justify the arrest. State v. Olson, 436 N.W.2d 92, 94 (Minn.1989), aff'd, 495 U.S. 91, 110 S.Ct. 1684, 109 L.Ed.2d 85 (1990). This court determines if probable cause existed based on an objective inquiry and review of the totality of the circumstances. State v. Hussong, 739 N.W.2d 922, 926 (Minn.App. 2007).

Appellant claims that the district court erred when it found probable cause for his arrest for second-degree assault. There is probable cause to arrest when, in light of all the circumstances, a prudent person or a person of reasonable caution would believe that a crime has been committed. Beck v. Ohio, 379 U.S. 89, 91, 85 S.Ct. 223, 225, 13 L.Ed.2d 142 (1964); Henry v. United States, 361 U.S. 98, 102, 80 S.Ct. 168, 171, 4 L.Ed.2d 134 (1959). Appellant was arrested under Minn.Stat. § 609.222, subd. 1 (2006), which prohibits assault with a dangerous weapon. An assault can be either "[a]n act done with intent to cause fear in another of immediate bodily harm or death" or "[t]he intentional infliction of or attempt to inflict bodily harm upon another." Minn.Stat. § 609.02, subd. 10 (2006).

Appellant claims that the district court's determination of probable cause was in part based on its finding that Deputy Puelston observed a white pickup truck in the garage with an attached snow plow and that this finding was clearly erroneous. Although Deputy Puelston never directly testified about the color of the vehicle that he saw in appellant's garage, Deputy Beckman testified that, before he reached appellant's residence, Deputy Puelston radioed him that he had observed "a white Chevy pickup truck with a plow" in the garage. Thus, through the other deputy's testimony, there was evidence of Deputy Puelston's observation of the color of the pickup in the garage.

The record indicates that, at the time of the arrest, the officers knew that Swanson's vehicle was severely damaged...