IN COURT OF APPEALS
Jeffrey William Magnuson, petitioner,
Commissioner of Public Safety,
Filed September 13, 2005
Hennepin County District Court
File No. 483883
Peter J. Timmons, 2000
Mike Hatch, Attorney General,
Jeffrey F. Lebowski, Joel A. Watne, Sean McCarthy, Assistant Attorneys General,
Considered and decided by Minge, Presiding Judge; Willis, Judge; and Stoneburner, Judge.
S Y L L A B U S
An implied-consent advisory does not violate a driver’s due-process rights by not warning the driver that driving with an alcohol concentration of .20 or more is an aggravating factor that might increase the penalty for driving while impaired.
O P I N I O N
In this appeal from the rescission of respondent’s license revocation, appellant commissioner of public safety argues that the court erred by concluding that (1) an investigatory stop based on an identified informant’s tip to the police was invalid and (2) the implied-consent advisory violated respondent’s due-process rights because it did not warn that a test result of .20 or more is an aggravating factor that might increase the penalty for driving while impaired. Because we find that the stop was lawful and that the implied-consent advisory did not violate respondent’s due-process rights, we reverse.
On April 17, 2004, D.G. (the informant) and her husband sat next to respondent Jeffrey Magnuson and his brother at the Veterans of Foreign Wars Hall (VFW) in Mound. The informant observed Magnuson and his brother drinking and being “very loud and boisterous.” When the informant saw Magnuson and his brother get into separate vehicles and drive away from the VFW, she called 911.
informant reported to the 911 dispatcher that she was “at the VFW in Mound on
Magnuson failed a field sobriety test and was taken to the police station. There, Officer Wiebusch read Magnuson an implied-consent advisory, and Magnuson consented to a breath test. Magnuson’s breath-test results showed an alcohol concentration of .21. Magnuson was charged with third-degree driving while impaired, and his driver’s license was revoked.
Magnuson petitioned for judicial review of his license revocation. After a hearing, the district court rescinded Magnuson’s license revocation, concluding that the informant’s tip did not provide a sufficient basis for conducting an investigatory stop and that the implied-consent advisory violated Magnuson’s due-process rights. The commissioner of public safety appeals the rescission of Magnuson’s license revocation.
1. Did the district court err by concluding that the informant’s tip did not provide a sufficient basis to stop Magnuson?
2. Did the district court err by concluding that the implied-consent advisory violated Magnuson’s due-process rights?
The commissioner of public safety first challenges the district court’s conclusion that Officer Sussman did not have a legal basis for the investigatory stop. We review de novo a district court’s determination of the legality of an investigatory stop and questions of reasonable suspicion. State v. Britton, 604 N.W.2d 84, 87 (Minn. 2000); see also Jobe v. Comm’r of Pub. Safety, 609 N.W.2d 919, 921 (Minn. App. 2000) (noting that the validity of a stop presents a purely legal question).
the Fourth Amendment, a police officer may conduct a limited stop to
investigate suspected criminal activity if the officer can “point to specific
and articulable facts which, taken together with rational inferences from those
facts, reasonably warrant the intrusion.” Britton, 604 N.W.2d at 87 (quoting Terry v. Ohio, 392 U.S. 1, 21, 88 S. Ct. 1868,
1880 (1968)). A stop is lawful if the
police officer has a “particularized and objective basis for suspecting
the particular persons stopped of criminal activity.” Berge v. Comm’r of Pub. Safety, 374 N.W.2d 730, 732 (Minn. 1985)
(quoting United States v. Cortez,
449 U.S. 411, 417–18, 101 S. Ct. 690, 694–95 (1981)). The collective knowledge of the police may
provide the basis for an investigatory stop. State v. Riley, 568 N.W.2d 518, 523 (
factual basis required to support an investigatory stop is minimal. State v. McKinley, 305
When Officer Sussman stopped Magnuson, the informant had identified herself by name and provided her telephone number to the 911 dispatcher. This was sufficient information with which the police could locate the informant and hold her accountable, and we therefore conclude that the tip had sufficient indicia of reliability.
whether the police were justified in stopping Magnuson depends not only on the reliability
of the tip but also on the “nature of the information” provided. See Yoraway,
669 N.W.2d at 626. The informant told the 911 dispatcher that
she was “at the VFW in Mound on
have upheld investigatory stops based on informant tips when the informant
provided less information than the informant provided here. In Playle,
we held that a stop based on a Burger King employee’s tip was lawful because
the tip was reliable and was based on the personal observations of the
informant. 439 N.W.2d at 748–49. The informant in Playle did not state why he believed that the driver was drunk, but
this court upheld the stop because the police had “reason to believe the
informant based his conclusion on personal observations.”
the informant described Magnuson as “definitely drunk” is also relevant. A tip that a driver is intoxicated, as
opposed to possibly intoxicated, suggests that the tip was based on informant’s
personal observation. City of
commissioner of public safety next argues that the district court erred by
concluding that the implied-consent advisory violated Magnuson’s due-process
rights because it did not warn him that driving with an alcohol concentration
of .20 or more is an aggravating factor that might increase the penalty for the
offense. Whether an implied-consent
advisory violates a driver’s due-process rights is a question of law, which
this court reviews de novo. Fedziuk v. Comm’r of Pub. Safety, 696
N.W.2d 340, 344 (
Minnesota law provides that when a person suspected of driving while impaired is asked to take a chemical test for intoxication, that person must be informed
(i) to determine if the person is under the influence of alcohol, controlled substances, or hazardous substances;
. . .
(2) that refusal to take a test is a crime;
(3) if the peace officer has probable cause to believe the person has violated the criminal vehicular homicide and injury laws, that a test will be taken with or without the person’s consent; and
(4) that the person has the right to consult with an attorney, but that this right is limited to the extent that it cannot unreasonably delay administration of the test.
Minn. Stat. § 169A.51, subd. 2(1)–(4) (2002). Officer Wiebusch read Magnuson an implied-consent advisory that contained the information required by section 169A.51, subd. 2. Magnuson’s breath-test results showed that he had an alcohol concentration of .21. Because driving with an alcohol concentration of .20 or more is an aggravating factor, Magnuson was charged with third-degree driving while impaired, a gross misdemeanor under Minn. Stat. §§ 169A.03, subd. 3(2), .26, subd. 2 (2002).
We initially note that the district court erred by observing that a recent change in the driving-while-impaired statutes increased the severity of Magnuson’s offense. The district court stated that Magnuson “was charged with a gross misdemeanor for a test result that would have been a misdemeanor if the offense had occurred before August 1, 2003.”
Driving with an alcohol concentration of .20 or more has been
a gross-misdemeanor offense since 1997.
Minn. Stat. § 169.121, subds. 1(f), 3(c)(1) (Supp. 1997). In 2000, the
district court also based its conclusion on McDonnell
v. Comm’r of Pub. Safety, 473 N.W.2d 848 (
implied-consent advisory read to Magnuson does not mention that driving with an
alcohol concentration of .20 or more is an aggravating factor that can increase
the criminal penalty for the offense. But
“[t]he failure of the advisory to warn of every possible consequence does not
violate fundamental fairness inherent in due process.” Catlin
v. Comm’r of Pub. Safety, 490 N.W.2d 445, 447 (
The advisory here accurately summarized the language in section 169A.51, subdivision 2. And by reading the advisory, Officer Wiebusch did not threaten charges that the state was not authorized to impose, as was held to be a violation of due process in McDonnell. See McDonnell, 473 N.W.2d at 855. Because due process does not require that the implied-consent advisory warn a driver of every possible consequence of taking or refusing to take a chemical test and because the advisory here was accurate and did not permit the police to threaten Magnuson with charges that the state may not impose, we conclude that there was no violation of Magnuson’s due-process rights. The district court, therefore, erred by rescinding the revocation of Magnuson’s driver’s license.
D E C I S I O N
Because the informant’s tip was reliable and the police had reason to believe that it was based on her personal observations, the district court erred by concluding that the investigatory stop was illegal. And because the implied-consent advisory need not warn a driver that driving with an alcohol concentration of .20 or more is an aggravating factor that might increase the penalty for driving while impaired, the district court also erred by concluding that Magnuson’s due-process rights were violated.