Stevens v. Comm'r Safety, A13–1855.

• Decision Date: 14 July 2014
• Docket Number: No. A13–1855.,A13–1855.
• Citation: 850 N.W.2d 717
• Parties: Rita Ann STEVENS, petitioner, Appellant, v. COMMISSIONER OF PUBLIC SAFETY, Respondent.
• Court: Minnesota Court of Appeals

850 N.W.2d 717

Rita Ann STEVENS, petitioner, Appellant,

v.COMMISSIONER OF PUBLIC SAFETY, Respondent.

No. A13–1855.

Court of Appeals of Minnesota.

July 14, 2014.

Syllabus by the Court

Minnesota's implied-consent statute does not violate the unconstitutional-conditions doctrine by authorizing the commissioner of public safety to revoke the driver's license of a person who has been arrested for driving while impaired and has refused to submit to chemical testing.

Shane C. Perry, Perry & Perry, PLLP, Minneapolis, MN, for appellant.

Lori Swanson, Attorney General, James E. Haase, Assistant Attorney General, St. Paul, MN, for respondent.

Considered and decided by JOHNSON, Presiding Judge; RODENBERG, Judge; and CHUTICH, Judge.

OPINION

JOHNSON, Judge.

The commissioner of public safety revoked Rita Ann Stevens's driver's license after she was arrested for driving while impaired and refused to submit to chemical testing. On judicial review, the district court sustained the commissioner's revocation. On appeal, Stevens makes two arguments. First, she argues that the evidence is insufficient to prove that she refused to submit to chemical testing. Second, she argues that the implied-consent statute is unconstitutional because it violates the unconstitutional-conditions doctrine. We affirm.

FACTS

At noon on November 19, 2012, a police officer was dispatched to a possible hit-and-run accident in a parking lot in the city of Minnetonka. The officer identified Stevens as the driver of a Jeep that had hit a parked car multiple times. Because Stevens appeared to be intoxicated, the officer asked her to perform field sobriety tests, which she failed. The officer also asked Stevens to take a preliminary breath test (PBT), but she did not cooperate. The officer arrested Stevens on suspicion of driving while impaired (DWI) and brought her to the police station.

At 12:47 p.m., the officer read Stevens the implied-consent advisory. Stevens indicated that she did not wish to speak with an attorney. At 1:07 p.m., Stevens agreed to take a breath test, but the breath-test equipment malfunctioned. The officer then re-read the implied-consent advisory and offered Stevens the option of taking either a blood test or a urine test. Stevens expressed verbal agreement to take a urine test, but Stevens did not provide a urine sample after the female officer who administered the urine test gave her three opportunities to do so. The female officer told the arresting officer that she believed that Stevens was not making a good-faith effort to provide a urine sample. The arresting officer informed Stevens that he was deeming her to have refused to submit to chemical testing. The arresting officer noted Stevens's refusal on the implied-consent form, which he signed at 2:52 p.m.

The commissioner revoked Stevens's driver's license. In December 2012, Stevens petitioned for judicial review of the commissioner's revocation of her license. SeeMinn.Stat. § 169A.53, subd. 2 (2012). In June 2013, Stevens amended her petition, and the district court conducted an implied-consent hearing. Stevens was represented by counsel and was present at the hearing. At the outset of the hearing, Stevens's attorney identified two issues that are relevant to this appeal: whether Stevens refused to submit to chemical testing and “ McNeely issues.” The commissioner called one witness, the arresting officer, and offered an exhibit consisting of the implied-consent peace-officer's certificate and the implied-consent advisory. Stevens did not testify.

In August 2013, the district court issued a 13–page order and memorandum in which it sustained the commissioner's order of revocation. The district court found that Stevens's conduct properly was deemed to be a refusal to submit to chemical testing. The district court rejected Stevens's McNeely-based argument by concluding that the implied-consent statute satisfies the reasonableness requirement of the Fourth Amendment and, thus, is not unconstitutional. Stevens appeals.

ISSUES

I. Is the evidence in the record sufficient to allow the district court to find that Stevens refused to submit to chemical testing?

II. Does Minnesota's implied-consent statute violate the unconstitutional-conditions doctrine by authorizing the commissioner of public safety to revoke the driver's license of a person who was arrested for DWI and refused to submit to chemical testing?

ANALYSIS

I.

Stevens first argues that the evidence in the record of the implied-consent hearing is insufficient to allow the district court to find that she refused to submit to chemical testing.

A law-enforcement officer may request that a driver submit to a chemical test of the person's blood, breath, or urine, if the officer has “probable cause to believe the person was driving, operating, or in physical control of a motor vehicle” while impaired. Minn.Stat. § 169A.51, subd. 1(b) (2012). If a driver refuses to permit a test, “a test must not be given,” Minn.Stat. § 169A.52, subd. 1 (2012), but the commissioner of public safety shall revoke the person's driver's license for one year or more, id., subd. 3(a). If a driver expresses verbal agreement to submit to chemical testing but does not provide an adequate sample, his or her conduct may be deemed a refusal to submit to chemical testing. Busch v. State, Comm'r of Pub. Safety, 614 N.W.2d 256, 259–60 (Minn.App.2000); see also State v. Ferrier, 792 N.W.2d 98, 100–02 (Minn.App.2010) (affirming conviction of refusal to submit to chemical testing), reviewdenied

(Minn. Mar. 15, 2011). To determine whether a driver's failure to provide a sample constitutes refusal, a court should look to the driver's words and actions. Gabrick v. State, Comm'r of Pub. Safety, 393 N.W.2d 23, 25 (Minn.App.1986). The question whether a driver has refused to submit to chemical testing is a question of fact, to which this court applies a clear-error standard of review. Lynch v. State, Comm'r of Pub. Safety, 498 N.W.2d 37, 38–39 (Minn.App.1993).

Stevens does not dispute that she did not provide a urine sample, but she contends that the evidentiary record is lacking because it does not reflect the amount of time that the arresting officer gave her to provide a sample. Stevens asserts that, “to meet its burden of proof, Respondent was obligated to establish the amount of time Appellant was given to produce a urine sample before [the officer] deemed her to have refused.” She cites no authority for the premise that a finding of refusal-by-conduct must include a finding concerning the amount of time allowed for providing a test sample. The district court rejected Stevens's argument by citing State, Dep't of Highways v. Lauseng, 289 Minn. 344, 183 N.W.2d 926 (1971), in which the supreme court stated that a driver's “election of one of the alternative chemical tests ... presupposes the driver's ability to supply, within a reasonable time, a sample essential to that test,” and further stated that an officer need not “await the driver's convenience of a different time or place.” Id. at 345, 183 N.W.2d at 927. The district court correctly reasoned that neither the implied-consent statute nor the caselaw requires the commissioner to prove that a driver had any particular amount of time in which to provide a sample.

Even if we construe Stevens's brief broadly to argue that she did not refuse because she was not given a reasonable amount of time to produce a urine sample, her argument still would fail. The district court found that the arresting officer read Stevens the implied-consent advisory at 12:47 p.m., that she agreed to take a urine test shortly after 1:07 p.m., and that the officer deemed her to have refused testing and completed the implied-consent form at 2:52 p.m. These findings allow an inference that Stevens had a reasonable amount of time to provide a urine sample such that the absence of a urine sample was intentional. Moreover, the record includes the female officer's observation that Stevens was not making a good-faith effort to provide a urine sample. The district court found that Stevens “was given three opportunities to provide a urine sample, but did not do so.”

In sum, the evidence is sufficient to support the district court's finding that Stevens refused to submit to chemical testing. Thus, the district court's finding of refusal is not clearly erroneous.

II.

Stevens also argues that the district court erred by rejecting her argument that Minnesota's implied-consent statute is unconstitutional. The constitutionality of a statute is a question of law, to which this court applies a de novo standard of review. State v. Ness, 834 N.W.2d 177, 181 (Minn.2013). We presume that Minnesota statutes are constitutional and will declare a statute unconstitutional “with extreme caution and only when absolutely necessary.” Id. at 182 (quotation omitted). The party challenging a statute on constitutional grounds must meet “the very heavy burden of demonstrating beyond a reasonable doubt that the statute is unconstitutional.” State v. Johnson, 813 N.W.2d 1, 11 (Minn.2012) (quotation omitted).

In the implied-consent statute, the Minnesota legislature declared that 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 ... to a chemical test of that person's blood, breath, or urine for the purpose of determining the presence of alcohol.” Minn.Stat. § 169A.51, subd. 1(a). A law-enforcement officer may impose this duty on a person if the officer has probable cause that the person has committed the offense of DWI and if the person has been arrested for DWI. Minn.Stat. § 169A.51, subd. 1(b). But if a person refuses to submit to chemical testing, “a test must not be given.” Minn.Stat. § 169A.52, subd. 1; see also State v. Brooks, 838 N.W.2d 563, 571 (Minn.2013) (“If a driver refuses the test, the police are required to honor that refusal and not perform the test.”), ...