Mesenburg v. Comm'r of Pub. Safety

Decision Date27 December 2021
Docket NumberA21-0578
Citation969 N.W.2d 642
Parties Robert Daniel MESENBURG, petitioner, Appellant, v. COMMISSIONER OF PUBLIC SAFETY, Respondent.
CourtMinnesota Court of Appeals

Charles A. Ramsay, Daniel J. Koewler, Ramsay Law Firm, P.L.L.C., Roseville, Minnesota (for appellant)

Keith Ellison, Attorney General, William Young, Assistant Attorney General, St. Paul, Minnesota (for respondent)

Considered and decided by Connolly, Presiding Judge; Frisch, Judge; and Smith, John, Judge.*

CONNOLLY, Judge

We affirm the district court's decision to sustain the respondent's revocation of appellant's driver's license because he refused a chemical breath test after arrest. We conclude that Juncewski remains controlling here, so an officer can request that a driver take a PBT pursuant to Minn. Stat. § 169A.41, subd. 1, if the officer has reasonable suspicion that the driver was driving while impaired. In this case, the trooper had a reasonable suspicion that appellant was driving while impaired when he made the PBT request.

FACTS

A Minnesota State Trooper stopped appellant Robert Daniel Mesenburg's vehicle because Mesenburg was driving over the speed limit. The trooper testified that, upon approaching the vehicle and interacting with Mesenburg, he detected the odor of alcohol coming from Mesenburg, that Mesenburg's speech was slurred, and that Mesenburg's eyes were watery, glassy, and bloodshot. The trooper believed Mesenburg may have been impaired by alcohol based on his observations. The trooper asked Mesenburg whether he had consumed any alcoholic beverages, and Mesenburg replied that he had not. The trooper then asked Mesenburg to exit the vehicle to perform standardized field sobriety tests. The trooper observed several indicators of impairment during the field sobriety tests. The trooper then requested that Mesenburg take a PBT and Mesenburg refused. The trooper interpreted Mesenburg's refusal to take the PBT as Mesenburg trying to hide something, concluded that Mesenburg was impaired, and placed Mesenburg under arrest.

Respondent commissioner of public safety (the commissioner) revoked Mesenburg's driver's license under Minn. Stat. § 169A.52, subd. 3 (2020).1 Mesenburg requested judicial review of the revocation, challenging his arrest by arguing that Minn. Stat. § 169A.41, subd. 1, unconstitutionally authorizes a police officer to request a PBT based on reasonable suspicion and not probable cause. The district court sustained the revocation. The district court determined much of the trooper's testimony at the hearing to not be credible, concluding that it did "not find the trooper's testimony sufficiently reliable to give it significant weight." Specifically, the district court rejected the trooper's observations that Mesenburg's eyes were bloodshot and watery, that Mesenburg slurred his speech, and that field sobriety testing indicated Mesenburg was impaired. The district court found, instead, that the trooper administered one test improperly and Mesenburg performed the other two tests "flawlessly" and "next-to-perfect," respectively. Despite this, the district court concluded that the trooper had reason to believe that Mesenburg was impaired for three reasons: (1) he had observed Mesenburg speeding; (2) he detected the odor of alcohol coming from Mesenburg; and (3) Mesenburg had denied drinking, which the district court agreed could be interpreted as a lie indicative of hiding something when coupled with the odor of alcohol. Thus, the district court determined that the trooper properly requested Mesenburg take a PBT based on reasonable suspicion of driving while impaired because it was "bound by decades of Minnesota precedent clearly stating that a mere reasonable, articulable suspicion (not probable cause) is necessary to support a PBT request." This appeal follows.

ISSUES
I. Does Minn. Stat. § 169A.41, subd. 1, currently violate the Fourth Amendment by allowing a police officer to request a PBT based on reasonable suspicion and not probable cause?
II. Did the trooper have the required reasonable suspicion to request that Mesenburg take the PBT?
ANALYSIS
I. Minnesota Statutes section 169A.41, subdivision 1, constitutionally allows a police officer to request a PBT based on reasonable suspicion and not probable cause.

The parties agree that law enforcement officers have historically been required to have reasonable suspicion, not probable cause, of impaired driving to administer or request a PBT. See Juncewski , 308 N.W.2d at 321 (holding a PBT can be administered pursuant Minn. Stat. § 169.121, subd. 6 (1980), when a police officer has reasonable suspicion of impaired driving). However, the parties disagree about whether recent developments in Fourth Amendment jurisprudence have changed this principle. Mesenburg argues the United States Supreme Court's decision in Birchfield v. North Dakota , 579 U.S. 438, 136 S. Ct. 2160, 195 L.Ed.2d 560 (2016), makes clear that a PBT is a search that implicates the Fourth Amendment and, therefore, the request for a PBT must be premised on a warrant supported by probable cause or an exception to the warrant requirement. The commissioner argues that longstanding Minnesota caselaw has established the reasonable suspicion standard as the proper standard for requesting a PBT. On appeal from an implied-consent hearing, questions involving the Fourth Amendment are reviewed de novo. Harrison v. Comm'r of Pub. Safety , 781 N.W.2d 918, 920 (Minn. App. 2010).

Nothing in Birchfield causes us to doubt our supreme court's decision in Juncewski , nor the constitutionality of Minn. Stat. § 169A.41, subd. 1, as it exists today.2 In Birchfield , the United States Supreme Court consolidated three challenges to state implied-consent laws. 136 S. Ct. at 2172. One of those cases was our state supreme court's decision in State v. Bernard , 859 N.W.2d 762 (Minn. 2015), aff'd sub nom. Birchfield , 136 S. Ct. 2160. There, our state supreme court held that Bernard was properly charged for refusing to take a chemical breath test under Minn. Stat. § 169A.20, subd. 2 (2014), because a warrantless search of Bernard's breath would have been constitutional as a search incident to a valid arrest.3 Id. at 767. In Birchfield , the United States Supreme Court held that "a breath test, but not a blood test, may be administered as a search incident to a lawful arrest for drunk driving" and affirmed Bernard's conviction for violating Minnesota's chemical-test-refusal statute. 136 S. Ct. at 2185-86.

We start from the basic premise that a chemical breath test is not the same as a preliminary screening test (or PBT).4 On the one hand, Minnesota's implied-consent law states:

Any person who drives, operates, or is in physical control of a motor vehicle within this state or on any boundary water of this state consents, subject to the provisions of sections 169A.50 to 169A.53 (implied consent law), and section 169A.20 (driving while impaired), to a chemical test of that person's blood, breath, or urine for the purpose of determining the presence of alcohol, a controlled substance or its metabolite, or an intoxicating substance.

Minn. Stat. § 169A.51, subd. 1(a) (2020) (emphasis added). A person's chemical test failure or refusal can result in various civil and criminal consequences, including the commissioner revoking the person's driver's license, as happened to Mesenburg, or the state bringing criminal charges against the person under the test-refusal statute, as happened with the defendant in Bernard . See Minn. Stat. § 169A.51, subd. 1 (2020) ; Bernard , 859 N.W.2d at 767. The use of a chemical breath test failure or refusal is not subject to any evidentiary limitations by the implied-consent law. See generally Minn. Stat. §§ 169A.50 -.63 (2020). Moreover, a chemical breath test can only be required when an officer has probable cause to believe the person was driving while impaired. Minn. Stat. § 169A.51, subd. 1(b).

On the other hand, the procedural provisions of Minnesota's impaired driving laws authorize an officer to obtain a "preliminary screening test," the results of which "must be used for the purpose of deciding whether an arrest should be made and whether to require the tests authorized in section 169A.51 (chemical tests for intoxication)." Minn. Stat. § 169A.41, subd. 2 (2020). Our state supreme court recognizes that PBTs are "intended to be utilized in situations where the officer, after observing the driver, is unsure whether the driver is under the influence of alcohol." Marben v. State, Dep't of Pub. Safety , 294 N.W.2d 697, 700 (Minn. 1980). By statute, PBT results cannot be used in any court action, with limited exceptions. See Minn. Stat. § 169A.41, subd. 2.5 And we have previously acknowledged that "[n]o penalty directly results from a driver's exercise of his or her right to decline [a PBT]. A driver can refuse a PBT; many drivers do." Vondrachek , 906 N.W.2d at 271 (compiling cases where Minnesota drivers have refused PBT requests).

Birchfield and Bernard discussed breath tests in the context of chemical breath tests. Neither case said anything about PBTs. In fact, in Birchfield , the United States Supreme Court expressly stated that its "prior opinions have referred approvingly to the general concept of implied-consent laws that impose civil penalties and evidentiary consequences on motorists who refuse to comply" and that "nothing" in Birchfield "should be read to cast doubt on them." 136 S. Ct. at 2185. A PBT request may not be used to establish any element of a crime and refusing to take a PBT is not a crime. The purpose of a PBT and the consequences for refusing a PBT request are far different than the purpose of a chemical breath test and the consequences for refusing a chemical breath test, so it makes sense that different standards of law apply to them. Thus, because we are an error correcting court that does not change the law, see Minn. State Patrol Troopers Ass'n ex rel....

To continue reading

Request your trial
7 cases
  • Helget v. Comm'r of Pub. Safety
    • United States
    • Minnesota Court of Appeals
    • January 23, 2023
    ... ... Koppi , ... 798 N.W.2d 358, 362 (Minn. 2011) (stating that probable cause ... is required for a test-refusal conviction); Mesenburg v ... Comm'r of Pub. Safety , 969 N.W.2d 642, 647 ... (Minn.App. 2021) (stating that a chemical breath test can ... only be ... ...
  • State v. Majors
    • United States
    • Minnesota Court of Appeals
    • September 11, 2023
    ...an officer observes a traffic violation "coupled with indicia of intoxication," such as an odor of alcohol or bloodshot eyes. See Mesenburg, 969 N.W.2d at 648. It may even arise without any physical indicia of impairment if enough "other factors" suggest a driver is impaired. Taylor, 965 N.......
  • Johnson v. Comm'r of Pub. Safety
    • United States
    • Minnesota Court of Appeals
    • October 17, 2022
    ... ... reasonable, articulable suspicion to expand the scope of the ... stop to investigate for DWI. See, e.g., ... Mesenburg v. Comm'r of Pub. Safety, 969 N.W.2d ... 642, 648 (Minn.App. 2021) (explaining that observations of ... speeding coupled with the odor of ... ...
  • Bjerke v. Comm'r of Pub. Safety
    • United States
    • Minnesota Court of Appeals
    • May 9, 2022
    ... ... State v. Diede, 795 N.W.2d 836, 842 ... (Minn. 2011). This court reviews questions of reasonable ... suspicion de novo. Mesenburg v. Comm'r of Pub ... Safety, 969 N.W.2d 642, 648 (Minn.App. 2021), rev ... denied (Minn. Mar. 15, 2022) ...          An ... ...
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT