State v. Zimmerman

Decision Date07 November 2000
Docket NumberC0-00-181
PartiesState of Minnesota, Respondent, vs. Henry John Zimmerman, Appellant.
CourtMinnesota Court of Appeals

THIS OPINION WILL BE UNPUBLISHED AND MAY NOT BE CITED EXCEPT AS PROVIDED BY MINNESOTA STATUTES.

Petition for Further Review Denied January 16, 2001

Morrison County District Court. File No. K19928.

Affirmed.

Mike Hatch, Attorney General, St. Paul, MN; and Conrad Freeberg, Morrison County Attorney, Nicole L. Fredricks, Assistant County Attorney, Little Falls, MN, (for respondent).

Thomas F. Murtha, IV, Larson Law Office, Little Falls, MN, (for appellant).

Considered and decided by Klaphake, Presiding Judge, Lansing, Judge, and Schumacher, Judge.

SCHUMACHER

UNPUBLISHED OPINION

SCHUMACHER, Judge

Henry John Zimmerman was convicted of driving without a license and gross misdemeanor refusal to submit to a chemical test. He appeals only his conviction for gross misdemeanor refusal to submit to a chemical test. We affirm.

FACTS

On January 7, 1999, someone drove Zimmerman's truck into Beth Rekstad's mailbox and then into the nearby ditch. Henry Zimmerman and Dean Zimmerman claimed that Dean Zimmerman was driving at the time of the accident. According to the Zimmermans, after the accident Dean Zimmerman got a ride home from a passing motorist and Henry Zimmerman walked up to Rekstad's home. Rekstad admitted Zimmerman into the house and, at his request, directed him to her telephone. Rekstad had to help Zimmerman dial the phone. While doing so, she noticed the odor of alcohol coming from him and became uncomfortable, so while Zimmerman was on the phone she used her cellular phone to call the sheriff's department to ask them to send an officer to her home.

By the time the first officer, Deputy Larry Converse, arrived, Dean Zimmerman was there and a second truck was parked in Rekstad's driveway. Dean Zimmerman told Converse that he had driven the truck into the mailbox and the ditch. While Converse was questioning Dean Zimmerman in Converse's squad car, Henry Zimmerman approached the car. When Converse asked Henry Zimmerman how he arrived at the scene, Zimmerman said he did not have to answer that.

While this was happening, Deputy Randy Simonson arrived. Simonson observed Henry Zimmerman stagger around, throw his hands in the air, and say he was crazy. Simonson asked Zimmerman how he got to the scene; Zimmerman said he did not know. Simonson smelled alcohol on Zimmerman and observed that his eyes were bloodshot. Noting that there were two trucks at the scene, Simonson concluded that Zimmerman had driven one of them and arrested Zimmerman for driving while under the influence of alcohol.

After taking Zimmerman to the Morrison County Law Enforcement Center, Simonson read him the implied consent advisory form and asked him to submit to a breath test. Zimmerman refused. When Simonson asked why Zimmerman refused, Zimmerman said, "I don't trust you."

The state charged Zimmerman with driving while under the influence, refusal to submit to a chemical test, and driving without a license. On the day of trial, Zimmerman made a motion for a jury instruction that reasonable refusal to test was a defense to the charge of refusal to submit to the chemical test. The district court denied the motion. The district court found Zimmerman guilty of driving without a license, and the jury found him guilty of gross misdemeanor refusal to submit to a chemical test. The jury, however, acquitted Zimmerman of gross misdemeanor driving while under the influence.

DECISION

The parties frame the primary issue as whether the criminal statute making refusal to submit to a chemical test a crime under certain circumstances incorporates the affirmative defense of reasonable refusal to testing provided under the implied consent statute. This issue has not yet been decided by a Minnesota appellate court. See State v. Olmscheid, 492 N.W.2d 263, 266 n.2 (Minn. App. 1992). Although it is a legitimate issue, we need not be the first to decide it....

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