This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (2000).






Kevin Leroy Lundebreck, petitioner,


Commissioner of Public Safety,


Filed September 25, 2001


Crippen, Judge


Pope County District court

File No. C400235



Charles L. Hawkins, Suite 2890, 333 South Seventh Street, Minneapolis, MN 55402 (for appellant)


Mike Hatch, Attorney General, David L. Ramp, Assistant Attorney General, 525 Park Street, Suite 500, St. Paul, MN 55103 (for respondent)


            Considered and decided by Crippen, Presiding Judge, Schumacher, Judge, and Shumaker, Judge.

U N P U B L I S H E D   O P I N I O N


Appellant Kevin Leroy Lundebreck disputes the trial court’s decision sustaining the commissioner’s revocation of his driver’s license under the state implied consent law.  Because his implied consent waives any privilege appellant may have had to withhold his blood sample and because the hospital’s inability to draw a blood sample at the trooper’s request did not constitute a refusal, triggering the alternative-test provision of the statute, we affirm.


            In June 2000, appellant Kevin Lundebreck was in an automobile accident and was transported to a hospital to be treated for injuries sustained in the accident.  Minnesota State Trooper Kathy Dingman was dispatched to the scene of the accident and followed appellant to the hospital.  Appellant was unconscious and unresponsive when Trooper Dingman arrived at the hospital.  Trooper Dingman invoked appellant’s implied consent, and medical personnel attempted to draw a sample of blood from appellant but were unsuccessful.  The hospital gave Trooper Dingman a surplus vial of appellant’s blood that staff had drawn a few minutes earlier for medical purposes.  The blood was later tested and found to have an alcohol concentration of .21.  The state arrested appellant for driving while intoxicated and revoked his driver’s license pursuant to the implied consent law, Minn. Stat. § 169.123 (1998).[1]  

In December 2000, the trial court denied appellant’s request for rescission of the decision to revoke his license.  The court found that the “taking of a blood sample provided by the hospital staff did not violate Minn. Stat. § 169.123,” and “implied consent constitute[d] a waiver of the physician-client privilege, and thus [did] not violate Minn. Stat. § 595.02 [2000].” 


The reviewing court will overturn conclusions of law “only upon a determination that the trial court has erroneously construed and applied the law to the facts of the case.”  Dehn v. Comm’r of Pub. Safety, 394 N.W.2d 272, 273 (Minn. App. 1986) (citation omitted).  Under the implied consent law, all drivers have consented “to a chemical test of [their] blood, breath, or urine for the purpose of determining the presence of alcohol, controlled substances, or hazardous substances.”  Minn. Stat. § 169.123, subd. 2(a).  If chemical testing reveals an alcohol concentration of 0.10 or more, the state may revoke the driver’s license of that individual.  Id., subd. 5a(a).  Drivers may withdraw their implied consent by refusing to permit a test; refusal establishes an alternative ground for revocation of the driver’s license.  Id., subd. 4(a), (c).  An unconscious person is deemed not to have withdrawn consent, and an officer may administer any of the chemical tests.  Id., subd. 2c. 

1.         Medical Privilege

Appellant challenges the trial court’s conclusion that his implied consent automatically waived any medical privilege that he may have otherwise had over the blood sample.  The medical-privilege statute protects the disclosure of information obtained in treating a patient if  “a physician-patient relationship” exists, the information or opinion acquired in attending the patient “was of the type contemplated by the statute,” and “the information was necessary to enable [the physician] to act in a professional capacity.”  State v. Staat, 291 Minn. 394, 398, 192 N.W.2d 192, 196 (1971).[2]  The privilege may also apply to information obtained by nurses, psychologists, or social workers “engaged in a psychological or social assessment or treatment of an individual at the individual’s request.”  Minn. Stat. § 595.02, subd. 1(g); see also Ostrowski v. Mockridge, 242 Minn. 265, 273, 65 N.W.2d 185, 190-91 (1954) (concluding that “the privilege extends by implication to nurses or attendants who are employees or acting under the direction of the physician examining or treating the patient” (footnote omitted)).  

In this case, it is not entirely clear whether a medical privilege existed, and the trial court did not state a conclusion on privilege.  But assuming a privilege existed, it was defeated by appellant’s implied consent to chemical testing.  We find no authority distinguishing actual consent from statutory consent for purposes of waiving a privilege.E.g., State ex rel. Schuler v. Tahash, 278 Minn. 302, 308, 154 N.W.2d 200, 205 (1967) (providing an individual “can effectively waive [a] privilege by conduct or affirmative consent” (citations omitted)).  

 Appellant contends that the medical privilege cannot be waived by implied consent because both the privilege and the implied consent statute should be given effect.  See Minn. Stat. § 645.26, subd. 1 (2000) (“When a general provision in a law is in conflict with a special provision in the same or another law, the two shall be construed, if possible, so that effect may be given to both.”).  But these statutory provisions are not in conflict; the right to privacy is not inconsistent with a person’s consent to disclose information.  Appellant did not withdraw his consent to testing, which in turn waived any privilege he may have had over the blood sample.

2.         Test refusal

Appellant contends that the medical staff’s inability to obtain a blood sample at Trooper Dingman’s request constituted a refusal that invoked the statutory provision requiring an officer to administer an alternative test.  This contention has no merit. 

In general, law enforcement “may direct whether the test shall be of blood, breath, or urine.”  Minn. Stat. § 169.123, subd. 2(c).  There are two situations under which an alternative test may be required: (a) the driver refuses to submit to a blood or urine test; or (b) after administering a breath test, the officer has probable cause to believe the driver has ingested a controlled substance “that is not subject to testing by a breath test,” and the driver refuses to take a blood or urine test.  Id., subds. 2(c), 2a.  Under either scenario, if the driver refuses to take a blood or urine test,[3] the officer must offer an alternative test before any action may be taken against that person.  Id.,subds. 2(c), 2a. 

There was no refusal in the circumstances of this case; the hospital’s inability to obtain a blood sample was not due to a conscious choice made by appellant.  And physical inability to produce a blood sample does not constitute a refusal.  See Burke v. Comm’r of Pub. Safety, 381 N.W.2d 903, 904 (Minn. App. 1986) (providing that a driver’s failure to provide two separate breath samples constitutes a refusal “unless the failure is due to physical inability” (citation omitted)).  In the situation she confronted, Trooper Dingman was not required to offer appellant a urine test before any action could be taken against him.  It was not only within the trooper’s discretion to choose to administer a blood test, but it also was her only option for testing.[4]



[1] The implied consent law has been amended and recodified at Minn. Stat. §§169A.50-.53 (2000).  The trial court issued its order before January 1, 2001, the effective date of the statutory recodification, thus appellant’s dispute falls under Minn. Stat. § 169.123 (1998).


[2] The statute provides as follows:


A licensed physician or surgeon * * * shall not, without the consent of the patient, be allowed to disclose any information or any opinion based thereon which the professional acquired in attending the patient in a professional capacity, and which was necessary to enable the professional to act in that capacity * * * .


Minn. Stat. § 595.02, subd. 1(d) (2000).


[3] If the driver refuses to take a breath test, action may be taken against that person without offering the option of an alternative test.

[4] At the time Trooper Dingman invoked implied consent, appellant had not yet been catheterized.