This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (2002).







Allan Lee Mueller, petitioner,





Commissioner of Public Safety,



Filed February 4, 2003

Halbrooks, Judge




Swift County District Court

File No. C402106


Ronald R. Frauenshuh, Jr., 129 Northwest Second Street, Ortonville, MN 56278 (for appellant)


Mike Hatch, Attorney General, Darren L. DeJong, Assistant Attorney General, 525 Park Street, #500, St. Paul, Minnesota 55103 (for respondent)



            Considered and decided by Halbrooks, Presiding Judge, Kalitowski, Judge, and Schumacher, Judge.

U N P U B L I S H E D   O P I N I O N


            Appellant challenges the district court’s order sustaining the revocation of his driver’s license, arguing that (1) the officer lacked sufficient grounds to request a preliminary breath test (PBT), (2) his refusal to test was reasonable, and (3) he was not adequately informed that refusal to test is a crime.  Because the officer had a sufficient articulable basis to administer the PBT and adequately informed appellant that a refusal to test is a crime and because the evidence supports the district court’s conclusion that appellant’s refusal to test was unreasonable, we affirm.


            On February 25, 2002, Officer Jeff Olson stopped appellant Allan Lee Mueller for speeding.  As he talked to Mueller, Olson observed Mueller’s glossy eyes, slurred speech, odor of alcohol, and difficulty in retrieving his driver’s license from his wallet.  When asked to get out of his vehicle, Mueller stumbled.  Olson asked Mueller if he had been drinking and Mueller admitted to having had “a few.”  At that point, Mueller informed Olson that he had a wooden leg.  Olson asked Mueller to perform a series of field sobriety tests, including a finger-dexterity test and horizontal-gaze nystagmus test (HGN).  Because of Mueller’s wooden leg, Olson testified that he did not request that Mueller perform any balancing tests.  Mueller failed both the finger-dexterity test and the HGN.  Olson then asked Mueller to provide a sample for a preliminary breath test (PBT).  Mueller complied, but also failed this test. 

Mueller suffers from several disabilities as a result of injuries he sustained in a granite-quarry explosion in 1984.  He lost his left leg above the knee and uses a prosthesis, had both eardrums blown out, which has resulted in some loss of hearing and balance, and sustained some nerve damage to his hands that has decreased his sense of touch.  Mueller testified that he told Olson about his hearing problem and the numbness in his fingers prior to performing the field sobriety tests.  Mueller also insists that he saw a green light flash from the PBT device, which to him meant that he passed.  Olson testified that the PBT device he used was a digital model that did not have a green light. 

Olson placed Mueller under arrest for DWI and transported him to the Appleton Hospital.  Olson read Mueller the Minnesota Implied Consent Advisory, but Mueller refused to permit any chemical testing.  When asked why, Mueller replied, “You already got me.”  Olson recorded Mueller’s response as a refusal to test.  Mueller’s driver’s license was revoked for one year for test refusal.  The district court upheld the commissioner’s revocation of Mueller’s driver’s license.  This appeal follows.      



            Mueller argues that his behavior, specifically fumbling with his wallet, stumbling when he got out of his pickup, and failing the field sobriety tests, was attributable to his disabilities and should not have been interpreted by Olson as indicia of intoxication.  As a result, Mueller contends that Olson lacked sufficient grounds to request that he take a PBT. 

When the facts are undisputed, whether an officer has a valid basis to request a PBT is a question of law, which this court reviews de novo.  Berge v. Comm’r of Pub. Safety, 374 N.W.2d 730, 732 (Minn. 1985).  In Minnesota, an officer may request a PBT if he or she can point to specific, articulable facts that form a basis to believe that a person is or has been driving, operating, or controlling a motor vehicle while under the influence of alcohol.  State v. Vievering, 383 N.W.2d 729, 730 (Minn. App. 1986), review denied (Minn. May 16, 1986).  Articulable suspicion is an objective standard and is determined from the totality of the circumstances.  Paulson v. Comm’r of Pub. Safety, 384 N.W.2d 244, 246 (Minn. App. 1986).  Minn. Stat. § 169A.41, subd. 1 (2000), provides:

When a peace officer has reason to believe from the manner in which a person is driving, operating, controlling, or acting upon departure from a motor vehicle, or has driven, operated, or controlled a motor vehicle, that the driver may be violating or has violated section 169A.20 (driving while impaired) * * * the officer may require the driver to provide a sample of the driver’s breath for a [PBT] * * * . 


Here, the officer had a reasonable basis to believe that Mueller was driving while under the influence of alcohol.  Mueller was clocked at a speed above the posted limit, admitted to drinking, smelled of alcohol, and had glossy eyes and slurred speech.  These facts alone are sufficient to raise an articulable suspicion that Mueller was driving while under the influence of alcohol and sufficient to request a PBT.  See Vievering, 383 N.W.2d at 729 (officer had sufficient reason to request PBT based on equipment violations, a speeding violation, observation of open beer can on the floor, and odor of alcohol on driver’s breath), review denied (Minn. May 16, 1986); Hager v. Comm’r of Pub. Safety, 382 N.W.2d 907, 911 (Minn. App. 1986) (finding sufficient basis for PBT when officer pulled driver over for missing headlight and license plate, observed driver’s bloodshot and watery eyes, and smelled alcohol on driver’s breath).  Moreover, these facts cannot be associated with any of Mueller’s disabilities and were observed by the officer before he asked Mueller to perform any field sobriety tests.  Even if we were to attribute Mueller’s stumbling from his pickup, fumbling for his wallet, and failure to pass the HGN and finger-dexterity tests to his disabilities, there are sufficient other facts to form a basis for Olson’s belief that Mueller had been driving a motor vehicle while under the influence of alcohol and to support the officer’s request for a PBT.  We, therefore, conclude that Olson’s request for a PBT was proper.


            Mueller next argues that his refusal to test was reasonable because he questioned the reliability of other testing once he learned that he had failed the PBT.  Mueller also contends that his refusal to test was reasonable because he was discriminated against because of his disabilities. 

            Whether a refusal is reasonable is generally characterized as a question of fact for the district court that will be reversed only if clearly erroneous.  State, Dep’t of Highways v. Beckey, 291 Minn. 483, 486-87, 192 N.W.2d 441, 444-45 (1971).  At the time a chemical test is requested, the person must be informed that refusal to take a test is a crime.  Minn. Stat. § 169A.51, subd. 2(2) (2000).  If a person refuses to permit a test, then a test must not be given.  Minn. Stat. § 169A.52, subd. 1 (2000).  Under the implied-consent statute,

[i]t is an affirmative defense for the petitioner to prove that, at the time of the refusal, the petitioner’s refusal to permit the test was based upon reasonable grounds. 


Minn. Stat. § 169A.53, subd. 3(c) (2000). 

            Mueller alludes to distrust of the PBT device.  But a refusal to test is not reasonable if it is based on distrust of the testing equipment.  See Swedzinski v. Comm’r of Pub. Safety, 367 N.W.2d 119, 120 (Minn. App. 1985) (finding driver’s refusal to test not reasonable even though driver was aware that the Intoxilyzer had malfunctioned on the first attempt).  Mueller also contends that Olson’s failure to show him the PBT results created more distrust and further justified his refusal to submit to testing.  But Olson was under no obligation to show Mueller the results of the PBT.  “[A]n implied consent hearing is not a de facto criminal proceeding and due process rights associated with criminal trials do not apply.”  Hartung v. Comm’r of Pub. Safety, 634 N.W.2d 735, 738 (Minn. App. 2001), review denied (Minn. Dec. 11, 2001) (quoting Brooks v. Comm’r of Pub. Safety, 584 N.W.2d 15, 20 (Minn. App. 1998)).  If Mueller, in good faith, doubted the reliability of further tests, he could have had an additional chemical test performed at his own expense under Minn. Stat. § 169A.51, subd. 7(b) (2000).[1]  

            Mueller’s discrimination claim is equally without merit.  Once Mueller informed Olson that he had a wooden leg, Olson did not request that Mueller perform any sobriety tests that required balancing.  Although Mueller testified that he believed that he told Olson about his hearing loss and nerve damage prior to testing, Olson testified that Mueller did not.  The district court heard from both witnesses and credited Olson’s testimony.  Mueller contends that his disabilities affected his ability to successfully complete the tests.  But Olson could not be expected to make adjustments for disabilities of which he had no knowledge.  Contrary to Mueller’s argument, because reasonable accommodations were made for his disabilities in the field sobriety testing, his human rights were not violated under Minn. Stat. § 363.03, subd. 3(c)(2) (2000).[2]

            The record supports the district court’s finding that Mueller “was resolute about not submitting to testing” and that he “knowingly exercised his right” to refuse to be tested under Minn. Stat. § 169A.52, subd. 1.  When advised that he was required to take a chemical test, Mueller replied, “No, I don’t have to take any test.”  When informed that refusal to take a test was a crime, Mueller replied, “No it isn’t.”  When told if the test was unreasonably delayed, or if he refused to make a decision, he will be considered to have refused the test, Mueller replied, “I will refuse it.”  When asked why he was refusing testing, Mueller replied, “You already got me.”  Mueller has not shown that his refusal to test was reasonable.  Therefore, the district court was not clearly erroneous in concluding that Mueller’s test refusal was unreasonable.


Finally, Mueller argues that the implied-consent advisory does not correctly state the law with respect to the criminality of a refusal to test.  He contends that the officer’s statement, “Refusal to take a test is a crime,” is inaccurate because it does not advise a person that test refusal is not a crime if the refusal is reasonable.  This court previously considered this argument in Davis v. Comm’r of Pub. Safety, 509 N.W.2d 380 (Minn. App. 1993), aff’d, 517 N.W.2d 901 (Minn. 1994), and held that the implied-consent advisory is not misleading in this respect.  We stated in Davis that

a driver’s ability to assert reasonable refusal as a defense in an implied consent proceeding does not render the advisory misleading because it does not change the fact that refusal is a crime.  It should be readily apparent to the drivers who are being asked to submit to an alcohol concentration test that they are subject to the crime of driving while under the influence.


Further, the advisory makes it clear that taking or refusing the test is not a “safe harbor.”  The drivers are given a clear indication of the seriousness of their situation because they are told that they must take a test, that refusal is a crime, and that they are entitled to consult with an attorney.  Given the drivers’ limited right to counsel, failure to advise them of all potential consequences is not fundamentally unfair.


Id. at 387 (citations omitted).


            Mueller responded, “No it isn’t,” when Olson told him that test refusal is a crime.  Mueller was advised by Olson of his limited right to counsel.  An attorney could have advised him on the legal consequences of his test refusal.  But Mueller declined to exercise this right, opting instead to consult with an attorney “at a later date.”  It is disingenuous for him to now argue that he was not adequately advised of the legal consequences of his refusal to test.

Mueller also contends that he was not adequately advised that test refusal is a crime because he was not read the advisory until after he had refused testing.  But the district court found that Mueller’s reasons for refusing testing were not reasonable in light of the inconsistencies in his testimony.  A district court’s findings of fact are given great deference and will not be set aside by this court unless clearly erroneous.  If there is reasonable evidence to support the district court’s findings of fact, this court will not disturb those findings.  Fletcher v. St. Paul Pioneer Press, 589 N.W.2d 96, 101 (Minn. 1999).  The record here well supports the district court’s findings.



[1] Minn. Stat. § 169A.51, subd. 7(b), provides, in relevant part:


The person tested has the right to have someone of the person’s own choosing administer a chemical test or tests in addition to any administered at the direction of a peace officer; provided, that the additional test sample on behalf of the person is obtained at the place where the person is in custody, after the test administered at the direction of a peace officer, and at no expense to the state.


[2] Minn. Stat. § 363.03, subd. 3(c)(2), provides, in relevant part, that discrimination includes


failure to make reasonable modifications in policies, practices, or procedures when the modifications are necessary to afford the goods, services, facilities, privileges, advantages, or accommodations to individuals with disabilities * * * .