IN COURT OF APPEALS
Alan J. Myers,
Filed March 14, 2006
Reversed and remanded
Concurring specially, Randall, Judge
Olmsted County District Court
File No. K9-04-4695
Attorney General, 1800
Raymond F. Schmitz,
Hazelton, Hazelton Law Offices, The Interchange Tower,
Considered and decided by Randall, Presiding Judge; Peterson, Judge; and Huspeni, Judge.*
S Y L L A B U S
Failing to inform a driver that refusal to submit to a chemical test for intoxication administered under Minn. Stat. § 169A.51 (2004) is a gross misdemeanor that may result in harsher penalties than test failure does not actively mislead the driver as to the driver’s legal obligations or implicitly assure the driver that the penalties for test refusal are less serious than the penalties for test failure and, therefore, comports with the fundamental fairness required by due process.
O P I N I O N
In this appeal from a pretrial order dismissing a charge of refusal to submit to a chemical test, the state argues that the district court erred in concluding that because the implied-consent advisory administered to respondent did not inform respondent that test refusal is a gross misdemeanor that may result in harsher penalties than test failure, the advisory violated respondent’s due-process rights. We reverse and remand.
State Trooper Stephen Willert stopped to investigate a vehicle that he saw stopped on the shoulder of Highway 52. Willert identified the driver as respondent Alan Myers, and after determining that there was probable cause for an arrest, Willert arrested respondent for driving while impaired (DWI) and transported him to a police station.
At the station, Willert read to respondent an implied-consent advisory that included the statement, “Refusal to take a test is a crime.” Respondent was provided with a telephone and a telephone book so that he could contact an attorney before deciding whether to submit to the test, and during the following 50 minutes, respondent attempted to contact an attorney. After several unsuccessful attempts to contact an attorney, a second reading of the implied-consent advisory, and a lengthy question-and-answer discussion about the advisory, respondent insisted upon consulting with an attorney before taking a chemical test, and Willert concluded that respondent refused to submit to testing.
Respondent was charged with third-degree DWI (refusal to submit
to a chemical test) in violation of Minn. Stat. § 169A.20, subd. 2 (2004), and
Were respondent’s due-process rights violated when the implied-consent advisory did not inform respondent that a test refusal is a gross misdemeanor that may result in harsher penalties than a test failure?
attorney may appeal to this court from a pretrial order granting a defendant’s
motion to dismiss a criminal charge if the order is not based solely on a
factual determination that there is a lack of probable cause to believe that
the defendant has committed an offense.
Minn. R. Crim. P. 28.04, subd. 1(1).
“[I]n reviewing pretrial prosecution appeals, this court ‘will only
reverse the determination of the trial court if the state demonstrates clearly
and unequivocally that the trial court has erred in its judgment and that,
unless reversed, the error will have a critical impact on the outcome of the
trial.’” State v. Poupard, 471 N.W.2d 686, 689 (
Dismissal of a
charge has a critical impact on the outcome of the trial.
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, subject to the provisions of sections 169A.50 to 169A.53 (implied consent law), and section 169A.20 (driving while impaired), to a chemical test of that person’s blood, breath, or urine for the purpose of determining the presence of alcohol, controlled substances, or hazardous substances. The test must be administered at the direction of a peace officer.
At the time a test is requested, the person must be informed:
(i) to determine if the person is under the influence of alcohol, controlled substances, or hazardous substances;
(ii) to determine the presence of a controlled substance listed in schedule I or II, other than marijuana or tetrahydrocannabinols; and
(iii) if the motor vehicle was a commercial motor vehicle, to determine the presence of alcohol;
(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 (2004). The process of providing a person with the information required under this subdivision is known as an implied-consent advisory.
The state contends that the district court erred in concluding that the implied-consent advisory administered to respondent violated respondent’s due-process rights because it did not inform respondent that a test refusal is a gross misdemeanor that may result in harsher penalties than a test failure. We agree that the district court erred.
The Minnesota Supreme Court has held that a portion of the implied-consent advisory violated the constitutional guarantee of due process because it threatened criminal charges that the state was not authorized to impose. McDonnell v. Comm’r of Pub. Safety,
473 N.W.2d 848, 855 (
The United States Supreme Court has
. . . recognized that due process does not permit those who are perceived to
speak for the state to mislead individuals as to either their legal obligations or the penalties they might
face should they fail to satisfy those obligations. In Raley
v. Ohio, 360
Under McDonnell, when Willert administered the implied-consent advisory to respondent, due process did not permit Willert to mislead respondent as to his legal obligations or the penalties he might face if he failed to meet those obligations. But, the implied-consent advisory that Willert administered correctly informed respondent that refusal to take a test is a crime, as required under Minn. Stat. § 169A.51, subd. 2(2), and said nothing about either the penalty for refusing to take a test or the penalty for failing a test. Because the information in the implied-consent advisory was correct and the advisory said nothing about the penalties that respondent might receive, there was no due-process violation for actively misleading respondent.
This does not end our analysis, however, because the district court’s conclusion that the implied-consent advisory violated respondent’s due-process rights was based on what the advisory failed to say, rather than on what the advisory explicitly stated. The issue that remains is whether a due-process violation occurred even though the advisory said nothing that actively misled respondent. In South Dakota v. Neville, 459 U.S. 553, 103 S. Ct. 916 (1983), the United States Supreme Court considered whether failing to fully warn a driver about the consequences of refusing to submit to a blood-alcohol test violated due process.
In Neville, a driver who was asked to
submit to a blood-alcohol test was warned that he could lose his driver’s
license if he refused.
In Doyle, two men were given Miranda warnings after being arrested in
connection with a marijuana sale. 426
The Supreme Court
agreed and held that even though the Miranda
warnings the men received did not explicitly tell them that there was no
penalty for remaining silent, using the men’s silence at the time of arrest for
impeachment purposes at trial violated the Due Process Clause of the Fourteenth
while it is true that the Miranda warnings contain no express assurance that silence will carry no penalty, such assurance is implicit to any person who receives the warnings. In such circumstances, it would be fundamentally unfair and a deprivation of due process to allow the arrested person’s silence to be used to impeach an explanation subsequently offered at trial.
When the driver
in Neville relied on Doyle in arguing that his due-process
rights were violated, the Supreme Court explained that in reaching its holding
in Doyle, “the Court relied on the
fundamental unfairness of implicitly assuring a suspect that his silence will
not be used against him and then using his silence to impeach an explanation
subsequently offered at trial.” Neville, 459
the Miranda warnings emphasize the dangers of choosing to speak (“whatever you say can and will be used as evidence against you in court”), but give no warning of adverse consequences from choosing to remain silent. This imbalance in the delivery of Miranda warnings, we recognized in Doyle, implicitly assures the suspect that his silence will not be used against him. The warnings challenged here, by contrast, contained no such misleading implicit assurances as to the relative consequences of [the driver’s] choice. The officers explained that, if [the driver] chose to submit to the test, he had the right to know the results and could choose to take an additional test by a person chosen by him. The officers did not specifically warn [the driver] that the test results could be used against him at trial. Explaining the consequences of the other option, the officers specifically warned [the driver] that failure to take the test could lead to loss of driving privileges for one year. It is true the officers did not inform [the driver] of the further consequence that evidence of refusal could be used against him in court, but we think it unrealistic to say that the warnings given here implicitly assure a suspect that no consequences other than those mentioned will occur. Importantly, the warning that he could lose his driver’s license made it clear that refusing the test was not a “safe harbor,” free of adverse consequences.
While the State did not actually warn [the driver] that the test results could be used against him, we hold that such a failure to warn was not the sort of implicit promise to forgo use of evidence that would unfairly “trick” [the driver] if the evidence were later offered against him at trial. We therefore conclude that the use of evidence of refusal after these warnings comported with the fundamental fairness required by due process.
Supreme Court’s reasoning in Neville
to the implied-consent advisory that Willert administered to respondent, we
conclude that failing to inform respondent that a test refusal is a gross
misdemeanor that may result in harsher penalties than a test failure comported
with the fundamental fairness required by due process. Unlike a Miranda
warning, which affirmatively states that the recipient has the right to remain
silent, the implied-consent advisory administered to respondent did not tell
respondent that he had a right to refuse to take a chemical test or implicitly
assure him that the penalties for a test refusal would not be more severe than
the penalties for a test failure. To the
contrary, the implied-consent advisory informed respondent that
respect to procedural due process, the Minnesota Supreme Court held in Friedman v. Comm’r of Pub. Safety,
473 N.W.2d 828, 835 (
Under these circumstances, failing to inform respondent that test refusal is a gross misdemeanor that may result in harsher penalties than a test failure did not actively mislead respondent as to his legal obligations or implicitly assure respondent that the penalties for test refusal are less serious than the penalties for test failure such that respondent would be unfairly tricked if he later learns that his penalty for test refusal is more severe than the penalty he would have received if he had submitted to a chemical test and failed it.
D E C I S I O N
Because the implied-consent advisory administered to respondent did not actively mislead respondent as to his legal obligations or implicitly assure respondent that the penalties for test refusal are less serious than the penalties for test failure, the district court erred in its judgment that the advisory violated respondent’s due-process rights.
Reversed and remanded.
RANDALL, Judge (concurring specially).
Accuse, step forward and confess – or you will stand back convicted.”
I concur in the result, but I am
On the civil side, the law requiring
you to give a test or face possible sanctions has been upheld several times as
a legitimate use of police power, with the trade-off being the right to drive
When the state has probable cause to suspect you of DWI, and the officer asks you to take a test to determine intoxication, the burden shifts to you to prove by taking the test that you were not intoxicated. The penalty for not taking up this burden used to be serious, but still civil, so it passed constitutional muster. Now the penalty for simply standing mute is a crime in and of itself.
There is no parallel that I can find anywhere in American jurisprudence –
where a citizen, standing mute before an accusation and not doing anything affirmative to evade arrest or obstruct an officer in the enforcement of the law, is guilty of the crime “standing mute.” The closest we come is Minn. R. Crim. Pro. 9.02, subd. 2. There, upon a proper motion and a proper showing, the state can get an order from the court allowing evidence to be extracted from a defendant. And that order is valid whether the defendant cooperates or has to be restrained while the sample is taken. But under no circumstances is refusal to cooperate a separate crime. I suspect it could not pass constitutional muster if that were the case. I can hardly believe the state has not thought of asking for criminal sanctions for a defendant’s violation of Rule 9 – if they thought they could get away with it.
With a return to the former law where test refusal was a civil matter, the state still has the carrot of serious civil sanctions. Returning test refusal to the civil side would still allow the state to enforce penalties and deny/limit driving privileges to the motorist, but it would no longer have a Fifth Amendment Bill of Rights odious stink about it.
justification for “implied consent” laws is that all motorists using
not have to do anything, you have to volunteer a test, or we will charge you with a crime of ‘not volunteering.’”
No citizen in this country parks their constitutional rights, when they take their car out of park.
* Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to Minn. Const. art. VI, § 10.