This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (2000).
STATE OF MINNESOTA
IN COURT OF APPEALS
State of Minnesota,
Myroslav Billy, Appellant.
Filed July 16, 2002
Stearns County District Court
File No. K9-00-2760
Mike Hatch, Attorney General, 525 Park Street, Suite 600, St. Paul, MN 55155-6102; and
Jan F. Petersen, St. Cloud City Attorney, Matthew A. Staehling, Assistant City Attorney, 400 Second Street South, St. Cloud, MN 56301 (for respondent)
Peter J. Timmons, 2000 Wells Fargo Plaza, 7900 Xerxes Avenue South, Bloomington, MN 55431 (for appellant)
Considered and decided by Randall, Presiding Judge, Hanson, Judge, and Hudson, Judge.
On appeal from a conviction of gross misdemeanor driving while under the influence (DWI), appellant argues that the district court erred by denying his motion to dismiss and to suppress evidence on the grounds that (1) appellant did not validly waive his right to counsel before taking the Intoxilizer test; (2) the deputy sheriff’s questioning of appellant before and during field sobriety tests was unlawful because the deputy failed to advise appellant of his Miranda rights; and (3) the deputy, by adding “do you understand” after almost each paragraph of the implied consent advisory, created confusion and violated appellant’s due process rights. We affirm.
On July 2, 2000, at 4:45 a.m., Stearns County Deputy Sheriff Bruce Bechtold stopped a vehicle, driven by appellant Myroslav Billy, because it was weaving and crossing over the fog line. Deputy Bechtold approached the vehicle and smelled alcohol in the vehicle and on Billy’s breath. He also noticed that Billy’s eyes were bloodshot and glassy and his speech was slurred.
Deputy Bechtold asked Billy whether he had been drinking. At first Billy denied that he had been drinking, which prompted Deputy Bechtold to ask him what he had done and where he had been that night. When Deputy Bechtold asked Billy to perform field sobriety tests, Billy replied that he was too drunk to perform the tests and Deputy Bechtold placed him under arrest.
After arriving at the Stearns County Jail, Deputy Bechtold read appellant the Implied Consent Advisory. When Deputy Bechtold reached the portion of the advisory informing appellant of his right to counsel, the following exchange occurred:
Q: Before making a decision about testing you have the right to consult with an attorney. If you wish to do so a telephone will be made available to you. If you are unable to contact an attorney you must make that decision on your own. You must make your decision within a reasonable period of time. Do you understand that?
* * * *
Q: Do you wish to consult with an attorney?
A: Um, I have a question about that. That won’t, that won’t do any good would it because.
Q: I can’t give you any advice.
A: You can’t, no.
Q: Will you take the breath test?
A: Yes I will for you.
Prior to taking the Intoxilyzer test, Deputy Bechtold read Billy his Miranda warnings. Billy told Deputy Bechtold, apparently without any prompting, that he didn’t need to take a test to show that he had been drinking too much. After Deputy Bechtold read Billy his Miranda warnings, Billy admitted to drinking at a friend’s house. The Intoxilyzer test showed that Billy had an alcohol concentration of .24.
The state charged Billy with driving while under the influence of alcohol with a concentration of 0.20 or more, in violation of Minn. Stat. § 169.121, subds. 1(f), 3(c)(1) (1998), and with possession of drug paraphernalia in violation of Minn. Stat. § 152.092 (1998).
Billy moved to dismiss all charges against him and to suppress evidence of his statements to police and the Intoxilyzer results. When the district court denied that motion, the parties agreed to submit the case to the court on stipulated facts. The district court found Billy guilty of gross misdemeanor DWI but stayed his sentence pending appeal. This appeal followed.
An appellate court, when addressing pretrial orders on motions to suppress, “may independently review the facts and determine, as a matter of law, whether the district court erred in suppressing – or not suppressing – the evidence.” State v. Harris, 590 N.W.2d 90, 98 (Minn. 1999) (citation omitted).
Billy argues that the district court erred by denying his motion to dismiss the DWI charge and to suppress all evidence obtained after the reading of the implied consent advisory, on the ground that Deputy Bechtold denied Billy his right to counsel by failing to clarify his equivocal response to the question whether he wished to consult with counsel.
Under the Minnesota Constitution, “an individual has the right, upon request, to a reasonable opportunity to obtain legal advice before deciding whether to submit to chemical testing.” Friedman v. Comm’r of Public Safety, 473 N.W.2d 828, 835 (Minn. 1991). If a person suspected of a DWI “expresse[s] an interest in consulting with an attorney, officers [are] required either to vindicate the underlying right * * * or clarify [the person’s] request.” State v. Slette, 585 N.W.2d 407, 410 (Minn. App. 1998) (citations omitted). If the Friedman right to counsel is violated, the results of chemical testing taken in violation of that right must be suppressed. Id. (stating that the underlying principle in State v. Robinson, 427 N.W.2d 217, 223 (Minn. 1988), that an ambiguous invocation of the Fifth Amendment right to counsel requires police to vindicate the request or clarify the request, applies to DWI chemical testing).
But in Friedman, Slette and Robinson, the accused requested the opportunity to consult with counsel. Friedman, 473 N.W.2d at 829 (“Friedman asked what her rights were and whether she could consult an attorney. The officer did not allow her to contact an attorney.”); Slette, 585 N.W.2d at 408 (Slette said, “You know, maybe I should get an attorney before I take that test; think so?”); Robinson, 427 N.W.2d at 221 (“[Robinson] told [the officer] he wanted to make no statement, and that he felt he should consult with an attorney.”). No similar request was made here.
Instead, the facts here are closer to those in State v. Von Bank, 341 N.W.2d 894, 895 (Minn. App. 1984). In Von Bank,this court held that an officer did not violate a DWI suspect’s right to counsel when the suspect responded “[d]on’t know” to the officer’s inquiry as to whether she wanted to consult with an attorney. 341 N.W.2d at 895-96. We relied upon Prideaux v. State, 310 Minn. 405, 247 N.W.2d 385 (1976), in concluding that
[t]he evidence in the instant case, including the fact that defendant was twice told she could consult an attorney before she made her decision, the fact that she did not ask to consult an attorney or ask for further explanation of her rights, and the fact that defendant said “I suppose” when asked if she understood the implied consent information given her, and also said “I suppose” when asked if she would submit to the breath test, do not support a finding that defendant was coerced. Defendant’s limited right to counsel was not violated and the results of her breath test are admissible as evidence at trial.
Because Billy answered that he understood the implied consent advisory and, after listening to that advisory, did not express any interest in consulting with an attorney, but only indicated he had a question about it, the district court did not err by determining that Billy was not denied his right to counsel.
Billy argues that the district court erred by failing to dismiss the DWI charge and to suppress all statements made by Billy in response to Deputy Bechtold’s questioning before and during field-sobriety tests because the deputy did not give Billy a Miranda warning.
A criminal defendant has a Fifth Amendment right against self-incrimination and must be informed of that right during a custodial interrogation. State v. Mellett, 642 N.W.2d 779, 787 (Minn. App. 2002) (citing Miranda v. Arizona, 384 U.S. 436, 444, 86 S. Ct. 1602, 1612 (1966)). Custodial interrogation includes
questioning initiated by law enforcement officers after a person has been taken into custody or otherwise deprived of his freedom of action in any significant way.
In re Welfare of G.S.P., 610 N.W.2d 651, 657 (Minn. App. 2000) (quotation omitted).
In determining whether a law enforcement officer has subjected a criminal defendant to a custodial interrogation, courts must conduct a two-pronged analysis. Id. First, the court must determine whether the criminal defendant was in custody, and second, the court must determine whether “the questioning was reasonably likely to elicit an incriminating response.” Id. (Citations omitted.) If the answer to both inquiries is affirmative, then a Miranda warning is required.
The test for determining whether a criminal defendant is in custody is “whether a reasonable person under the circumstances would believe they were in police custody of the degree associated with formal arrest.” Id. at 657. Interrogation “includes express questioning and words and actions by police officers, which ‘the police should know are reasonably likely to elicit an incriminating response.’” City of St. Paul v. Lynch, 477 N.W.2d 743, 746 (Minn. App. 1991).
The district court concluded that Billy was not entitled to a Miranda warning before the arrest because he was not in custody and, therefore, Deputy Bechtold’s questions were not custodial interrogation. Routine traffic stops are “not the functional equivalent of a formal arrest” and “roadside questioning of a motorist detained pursuant to a routine traffic stop” does not constitute custodial interrogation. State v. Herem, 384 N.W.2d 880, 882, 884 (Minn. 1986) (citing Berkemer v. McCarty, 468 U.S. 420, 104 S. Ct. 3138 (1984)).
Deputy Bechtold stopped Billy’s vehicle because Billy was weaving in his lane of traffic and crossing the line. Billy does not argue that the stop was unlawful. After Deputy Bechtold asked whether he would be willing to perform some field sobriety tests, Billy volunteered that he was too drunk to perform the tests and that he was too drunk to drive. It was not until after Billy failed the field sobriety tests, and had made these incriminating statements, that Deputy Bechtold placed him under arrest. Deputy Bechtold did nothing to make Billy reasonably believe he was in custody until after the field sobriety tests.
Because this was a routine traffic stop and Billy had not been placed in custody at the time he made the statements, the district court did not err in determining that no Miranda warning was required.
Billy argues that the district court erred by failing to dismiss the DWI charge and to suppress all evidence obtained after the reading of the implied consent advisory because Deputy Bechtold inserted some form of the question “do you understand” after almost each paragraph in the implied consent advisory. The district court concluded that these insertions did not violate Billy’s due process rights because the “flow and context” of the implied consent advisory was not altered by them.
Billy’s reliance on Steinolfson v. Comm’r of Public Safety, 478 N.W.2d 808 (Minn. App. 1991) is misplaced. In Steinolfson, this court determined that the due process rights of a driver were violated by an implied consent advisory that misinformed the driver by threatening criminal charges that weren’t authorized by statute. Id. at 809. Steinolfson is distinguishable from this case because the implied consent advisory read by Deputy Bechtold accurately reflected the law. Deputy Bechtold’s questions were asked to increase Billy’s understanding of his rights, not to diminish it.
Because the interruption of the implied consent advisory was intended to make the advisory more understandable, the district court did not err by determining that Deputy Bechtold did not violate Billy’s due process rights.
 Although Deputy Bechtold testified that Billy was not free to leave at any time after the stop, this does not convert a routine traffic stop into a custodial interrogation. See, e.g., Herem, 384 N.W.2d at 882.