This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (1998).








State of Minnesota,





Henry John Zimmerman,




Filed November 7, 2000


Schumacher, Judge


Morrison County District Court

File No. K19928



Mike Hatch, Attorney General, 525 Park Street, Suite 500, St. Paul, MN 55103; and


Conrad Freeberg, Morrison County Attorney, Nicole L. Fredricks, Assistant County Attorney, 213 Southeast First Avenue, Little Falls, MN 56345 (for respondent)


Thomas F. Murtha IV, Larson Law Office, 111 First Avenue Southeast, Little Falls, MN 56345 (for appellant)



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

U N P U B L I S H E D   O P I N I O N


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.


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. 


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.

The trial court declined to give Zimmerman’s requested instruction that reasonable refusal was a defense to the crime of refusing to submit to a chemical test.  A defendant is entitled to an instruction on his or her theory of the case if there is evidence to support that theory.  State v. Ruud, 259 N.W.2d 567, 578 (Minn. 1977).  The trial court has the discretion to refuse to give a requested jury instruction.  State v. Daniels, 361 N.W.2d 819, 831 (Minn. 1985).  The trial court need only give an instruction if it is warranted by the facts and the relevant law.  State v. Holmberg, 527 N.W.2d 100, 106 (Minn. App. 1995), review denied (Minn. Mar. 21, 1995).

Even if the crime of refusal to submit to a chemical test does incorporate the affirmative defense of reasonable refusal, there is no evidence in the record to support an instruction on reasonable refusal, other than Zimmerman's own testimony that he refused the test because he did not trust the officer without more.  This reason fails as a matter of law to justify an instruction on reasonable refusal. 

In Swedzinski v. Commissioner of Pub. Safety, 367 N.W.2d 119 (Minn. App. 1985), this court ruled that a defendant’s refusal to take a breath test because the defendant did not trust the accuracy of the intoxilyzer machine was not a “reasonable refusal” under the implied consent statute, even though the defendant was aware that the intoxilyzer had malfunctioned on the first attempt.  Id. at 119-20.  In this case, unlike in Swedzinski, there was no evidence of circumstances that would cause a reasonable person to distrust Simonson.  Furthermore, the intoxilyzer machine itself has a more direct and important influence on the results of the test than does the officer administering the test.  If refusing a chemical test based on distrust of the intoxilyzer machine is not reasonable, refusing a test based on distrust of the officer administering the test is even less so. 

Because the record contains no evidence that would justify an instruction on reasonable refusal to submit to testing, the trial court’s decision to refuse to give a jury instruction on the subject was not an abuse of discretion.