Schramm v. Commissioner of Public Safety, No. A05-1736 (Minn. App. 7/11/2006)
| Decision Date | 11 July 2006 |
| Docket Number | No. A05-1736.,A05-1736. |
| Court | Minnesota Court of Appeals |
| Parties | Kimberly Ann Schramm, petitioner, Appellant, v. Commissioner of Public Safety, Respondent. |
Appeal from the District Court, Washington County, File No. C3-05-1095.
Steven J. Meshbesher, Kevin M. Gregorius, Meshbesher & Associates, (for appellant)
Mike Hatch, Attorney General, Sean R. McCarthy, Assistant Attorney General, (for respondent)
Considered and decided by Stoneburner, Presiding Judge; Klaphake, Judge; and Dietzen, Judge.
UNPUBLISHED OPINION
Appellant challenges the district court order sustaining the revocation of her driver's license following her refusal to submit to alcohol-concentration testing, arguing that (1) she was denied due process when her implied-consent hearing was not held within 60 days; (2) the officers lacked probable cause to search another's residence and to believe that she had violated the impaired-driving statutes; (3) her test refusal was reasonable under the circumstances; and (4) the implied-consent advisory is unconstitutional as a violation of due process. Because the district court properly applied the law and did not abuse its discretion and the implied-consent advisory is constitutional, we affirm.
In January 2005, police officers Michael Vandevort and Andria Lindeen responded to a call that a vehicle reportedly hit a dirt berm on a private driveway, rolled over on its top, and its occupant may require assistance. When the officers arrived at the scene, the vehicle was unoccupied and severely damaged. Two witnesses at the scene reported that its occupant, an adult female later identified as appellant Kimberly Ann Schramm, told the witnesses to walk to the residence and "get Bill," who was later identified as appellant's boyfriend William Winchell.
When Winchell was contacted, he went to the overturned vehicle and pulled appellant out of the vehicle by her ankles. Winchell told the witnesses to leave and not call the police, and then removed several empty bottles of wine and alcohol from the vehicle and threw them into a wooded area near the scene.
Based on their observations of the damage vehicle and their interviews of the witnesses, officers Vandevort and Lindeen, who were trained and certified paramedics, were concerned that appellant was injured and in need of emergency aid. The officers, who had their medical equipment, walked to the residence to offer emergency aid. As they approached the residence, the officers were stopped by Winchell, who smelled strongly of alcohol. Winchell stated that he would "take care of it," and instructed them to "get off his property." Because Winchell appeared intoxicated and did not state whether appellant was injured or not, Officer Lindeen concluded that they should talk to appellant.
At the residence, the officers observed appellant through a window sitting on the couch. The parties dispute what occurred next. Both officers stated that they knocked on the door to the residence, that appellant invited them into the front entryway for one to two minutes, and then requested that they continue the conversation outside, and that the officers complied. Appellant indicated to the officers that she was not injured and did not need an ambulance. Both officers reported that, during this initial conversation, appellant smelled strongly of alcohol, and exhibited bloodshot and watery eyes, slurred speech, and poor balance; and observed that appellant's walk was unsteady and that she was "staggering." When asked if she had been drinking, appellant stated that "she had been drinking earlier in the evening and that she had a fight with her boyfriend and had left in the vehicle and that's when she rolled it over."
Appellant testified that she did not consent to the officers' entry into Winchell's home. Initially, appellant stated, but later testified that the officers walked in without permission and failed to identify themselves. Appellant also testified that she did not recall the officers inquiring about her injuries.
While outside the residence, Lindeen performed the horizontal gaze nystagmus test and appellant showed all six signs of impairment. Because of the negative 30 degree windchill, the officers did not perform field sobriety tests. When appellant stated that she was cold, the officers invited her to sit in the squad car, which she did with the door open. Appellant was then given a preliminary breath test, which she attempted to manipulate by feigning blowing into the machine. Lindeen hit the manual capture button on the machine, which came back with a blood-alcohol-concentration reading of .095.
Appellant was arrested for DWI and transported to the police station. Appellant was then read the Minnesota Implied Consent Advisory, which included warnings that "refusal to take a test is a crime" and "[i]f the test is unreasonably delayed or if you refuse to make a decision, you will be considered to have refused the test." Appellant indicated with an oral "yes" that she understood the implied-consent advisory and stated that she wished to consult with an attorney. Appellant was provided a telephone and phonebooks for 35 minutes; during that time she contacted her mother once and Winchell several times. Appellant indicated that Winchell was attempting to locate an attorney for her, but she did not attempt to contact any attorneys on her own. When asked if she was finished using the phone, appellant answered, "Yes." Appellant refused to take an alcohol-concentration test despite being warned that it would result in license revocation, and received a notice and revocation of her driver's license.
Appellant filed a petition for judicial review of the revocation with the district court challenging the revocation. At the implied-consent hearing, respondent presented the testimony of officers Vandevort and Lindeen. Appellant admitted to driving the vehicle; but testified that the implied-consent advisory was "vague" and that she had been confused about her rights.
Following the implied-consent hearing, the district court sustained the revocation of appellant's driving privileges, determining that appellant's due-process rights to a timely review hearing were not violated; the officers' warrantless entry into Winchell's home was justified by the emergency exception and appellant's consent; the officers had probable cause to believe that appellant had violated the impaired-driving statutes and to invoke the implied-consent law; appellant's test refusal was not reasonable; and the implied-consent advisory did not violate due process. This appeal followed.
Appellant raises four arguments on appeal. First, appellant argues that she was denied due process of law when her implied-consent hearing was not conducted within 60 days after filing her petition for judicial review, based on her contention that the district court erred by finding that the petition was filed on February 9 rather than January 21, 2005.
A district court's findings of fact will not be reversed unless clearly erroneous. Jasper v. Comm'r of Pub. Safety, 642 N.W.2d 435, 440 (Minn. 2002). Clearly erroneous means "manifestly contrary to the weight of the evidence or not reasonably supported by the evidence as a whole." Dufrane v. Comm'r of Pub. Safety, 353 N.W.2d 705, 707 (Minn. App. 1984).
As a threshold matter, respondent argues that appellant failed to present any evidence to the district court refuting the February 9 filing date and moves to strike any new evidence presented in appellant's brief and appendix regarding an earlier filing date.
The papers filed in the district court, the exhibits, and the transcript of the proceedings shall constitute the record on appeal. Minn. R. Civ. App. P. 110.01. An appellate court may not base its decision on matters outside the record on appeal and may not consider matters not produced and received in evidence below. Thiele v. Stich, 425 N.W.2d 580, 582 (Minn. 1988). When an appellate brief or appendix contains matters that are not part of the record below and were not considered by the district court, a motion to strike is properly granted. Krueger v. Wash. Fed. Sav. Bank, 406 N.W.2d 543, 545 (Minn. App. 1987). Because appellant's brief and appendix contain evidence of an earlier filing date that was not introduced or received into evidence below, we grant respondent's motion to strike those portions of appellant's brief and appendix.
When appellant petitioned for judicial review of the revocation of her driver's license, the governing statute provided no time period for conducting the review hearing. See Minn. Stat. § 169A.53, subd. 3(a) (2004). The supreme court subsequently held that the absence of a statutory time period was unconstitutional and revived the previous version of the statute. Fedziuk v. Comm'r of Pub. Safety, 696 N.W.2d 340, 348-49 (Minn. 2005). The revived version of Minn. Stat. § 169A.53, subd. 3(a) (2002), provides that an implied-consent hearing for a driver's license revocation "must be held at the earliest practicable date, and in any event no later than 60 days following the filing of petition for review." (Emphasis added).
Appellant contends that she mailed the petition for judicial review on January 20, 2005, and that the petition was received by the court administrator on January 21, 2005, and, therefore, the district court erred by finding that the petition was filed on February 9, 2005. But the record before the district court indicates that the court administrator stamped and initialed the petition as filed on February 9, 2005. This is the same filing date listed in the official court information system. And appellant...
To continue reading
Request your trial