State v. Speak

• Decision Date: 08 December 1983
• Docket Number: No. C7-83-804.,C7-83-804.
• Citation: 339 NW 2d 741
• Parties: STATE of Minnesota, Appellant, v. Jerry Thomas SPEAK, Respondent.
• Court: Minnesota Supreme Court

339 N.W.2d 741 (1983)

STATE of Minnesota, Appellant, v. Jerry Thomas SPEAK, Respondent.

No. C7-83-804.

Supreme Court of Minnesota.

November 4, 1983.

Rehearing Denied December 8, 1983.

Hubert H. Humphrey, III, Atty. Gen., Tom Foley, Ramsey Co. Atty., Stephen DeCoster, Asst. Ramsey Co. Atty., St. Paul, for appellant.

Samuel A. McCloud, Minneapolis, for respondent.

Hubert H. Humphrey, Atty. Gen., Linda F. Close, James B. Early, Sp. Asst. Attys. Gen., St. Paul, amicus curiae, for Commissioner of Public Safety.

Considered and decided by the court en banc without oral argument.

SCOTT, Justice.

This is a pretrial appeal by the state, pursuant to Minn.R.Crim.P. 29.03, from an order of the district court suppressing the results of a breathalyzer test on Fourth Amendment grounds in a prosecution of defendant for criminal negligence resulting in death, Minn.Stat. § 609.21 (1982).¹

At 2:40 p.m. on October 8, 1982, St. Paul police were called to the scene of a motor vehicle-pedestrian accident at Highland Parkway near Pascal Street. Highland Parkway is a divided east-west road that is two car lengths wide in each direction. The south side of the roadway at that point borders on a golf course. The first officer on the scene, Allen J. Lindell, found the pedestrian, a 19-year-old man named Ronald Schlichting, lying with his head on the south curb and the rest of his body in the southern-most part of the eastbound half of the parkway. Lindell checked Schlichting but found no pulse.

The paramedics arrived at that point and Lindell, assuming that Schlichting was dead, asked who was the driver. Defendant, who was 32 years old, said he was, and he pointed at a green Ford pickup truck about 80 feet west of the victim; defendant said that after the accident he had backed the truck to that point. Defendant said that he was driving eastbound on Highland Parkway, that the victim ran from the grass south of the parkway onto the road, and that his truck struck him. Defendant, who was very upset, smelled of alcohol. When Lindell asked him if he had been drinking, he said yes. Lindell did not observe or detect any of the other common symptoms of intoxication. Specifically, he did not detect any slurring of speech nor did he notice anything unusual about defendant's eyes or any swaying or weaving when defendant walked. He did not form the opinion that defendant was under the influence of alcohol.

Similarly, in further investigating the accident after he turned defendant over to two other officers, he uncovered no evidence of negligence. None of the witnesses he interviewed said that defendant had been speeding or otherwise driving carelessly. His investigation revealed only that the road had been clear, that defendant had not skidded before or after impact, and that impact had occurred in the street.

The two officers who took charge of defendant were James Campbell and James Gillet. Campbell immediately smelled alcohol on defendant's breath, thought that possibly defendant's speech was somewhat slurred, and felt that defendant could be under the influence of some substance. He asked defendant to accompany him to the squad car to provide more information. According to Campbell, defendant said that he had been driving eastbound on the parkway at about 25 miles per hour and that he had not seen the victim. Campbell gave him a Miranda warning and then asked more questions. Defendant said that he had been drinking, that he had had a few cocktails in the woods with some friends at his job (apparently he works for the public works department) and that the accident happened after he left.

Campbell and Gillet took defendant to headquarters for a test to determine his blood alcohol level. This was pursuant to a police department policy that requires the taking of such a test from any driver involved in a traffic accident resulting in a fatality. On the way to headquarters defendant's speech was "fairly good." Stated differently, defendant was very emotional and his speech seemed normal for that. Similarly, defendant walked normally. Campbell testified that he did not know if defendant was under the influence, that all he could say was the defendant had been drinking and that he was not sloppy drunk by any means. Officer Gillet, who was in defendant's presence on the way to the station, testified similarly.

The officers, who had told defendant that he would have to take a test, read defendant the provisions of the Implied Consent Law Advisory. At 3:20 p.m. defendant asked for and received permission to call an attorney. His attorney was not in but his secretary promised to have him call defendant back momentarily. After more delay, the attorney called. After defendant had been on the phone for a period of time, the officer demanded that defendant come and take a breath test. The test, which was apparently administered at 3:50 p.m., revealed that defendant's blood alcohol level was .11%.

Thereafter, a grand jury indicted defendant. The evidence that persuaded the grand jury to indict is not part of the record on appeal. Notwithstanding that, the state has made a number of references to it and other material in its brief. Defendant therefore has filed a motion to strike. We agree with defendant and, in deciding this appeal, have not considered any evidence not properly part of the record on appeal.

An implied consent revocation hearing was held before a Ramsey County Municipal Court judge. The judge rescinded the revocation on the ground that the officers did not have probable cause to believe that defendant had violated Minn.Stat. § 169.121 and therefore had no basis, at least under Minn.Stat. § 169.123, to administer the provisions of the Implied Consent Law. The judge, of course, did not address the issue of whether the breath test was properly administered under some other theory or whether it was admissible in the felony prosecution.

The latter issues were addressed in district court at the Rasmussen hearing. The district court interpreted United States Supreme Court and Minnesota cases as requiring probable cause before forcing a defendant to submit to a blood or breath or urine test in this situation — that is, probable cause to believe that the driver was driving under the influence of alcohol or was guilty of the crime of criminal negligence. The court concluded that there was no such probable cause in this case.

On appeal, the state argues that the officers had probable cause to believe that the breath test would result in the discovery of evidence that defendant had committed a crime, but the state also argues that probable cause of this sort was not needed, that only articulable suspicion was needed to detain defendant for a breath test, the breath test either not constituting a search or, at most, constituting a very limited search that was clearly justified here.

Our starting point is with the proposition that ordinarily the administration of a blood alcohol test — direct blood, breath or urine — is governed by Minn.Stat. §§ 169.121 and 169.123. Section 169.121, subd. 2, provides for the admission of the test results in a DWI prosecution only if the test was taken voluntarily or pursuant to the Implied Consent Law. As stated in State v. Aguirre, 295 N.W.2d 79, 82 (Minn.1980), "The purpose of the statute is to protect ordinary drivers suspected of driving while under the influence from being subjected to nonconsensual removal of blood even in situations where the Constitution would allow the nonconsensual...