This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (2002).
STATE OF MINNESOTA
IN COURT OF APPEALS
State of Minnesota,
Sherry Lynn Venton,
Filed June 17, 2003
Ramsey County District Court
File No. K9014512
Mike Hatch, Attorney General, 525 Park Street, Suite 500, St. Paul, Minnesota 55103; and
Susan Gaertner, Ramsey County Attorney, Mitchell L. Rothman, Assistant County Attorney, 50 Kellogg Boulevard West, Suite 315, St. Paul, Minnesota 55102 (for respondent)
John M. Stuart, State Public Defender, Leslie J. Rosenberg, Assistant Public Defender, 2221 University Avenue Southeast, Suite 425, Minneapolis, Minnesota 55414 (for appellant)
Considered and decided by Hudson, Presiding Judge, Minge, Judge, and Forsberg, Judge.*
Appellant Sherry Lynn Venton appeals from her convictions of felony-level fleeing an officer and test refusal/driving under the influence, claiming that the officer: (1) had no reasonable basis to stop her vehicle; and (2) violated the implied consent laws by failing to offer her a choice among the different types of alcohol tests available, and violated her right to counsel by not providing a telephone. Appellant also claims that the evidence was insufficient to support her conviction for fleeing. Because we find the stop was based on reasonable suspicion, there was no violation of the implied consent laws, and the evidence is sufficient to support the conviction, we affirm.
Appellant interrupted Officer Lowther many times during the implied consent reading, including once to request a telephone, stating that, “[a] telephone will be made available to me.” Officer Lowther testified that he did not interpret her request for a telephone as a request to speak with an attorney because “she was just blurting out sentences throughout the entire implied consent.” Moreover, when Officer Lowther asked clarifying questions about her request for access to a telephone and whether she wanted to contact an attorney, appellant simply stated that she was cold.
Finally, Officer Lowther testified that, when appellant asked for someone else to explain what was happening, he interpreted that as a request to talk to another officer. Although Officer Lowther read the implied consent warning to appellant several times, when asked if she understood the warning, appellant replied, “No. I don’t. I don’t. * * * I don’t understand anything you asked me.” Officer Lowther explained that once the paramedics examined appellant, he would take her to a telephone if she wanted to contact an attorney. Appellant did not respond directly and unambiguously; instead she said she did not want to say anything because she was cold, even as Officer Lowther asked her directly if she wanted to speak to a lawyer.
At trial, appellant’s sister, Caryn Venton, testified that appellant pulled over at the first opportunity she had. She also said that Officer Lowther never told appellant she was under arrest and that when he stepped away from the car, appellant, in her drunken state, apparently believed she was free to go. She testified that she told appellant, “stop, stop, stop,” and that eventually, appellant did stop.
Appellant also testified on her own behalf. Appellant testified that she felt “sick, hot, [and] dizzy” when she left the bar. Appellant testified that she drank four mixed drinks between 8:00 p.m. and 1:00 a.m., each drink containing multiple shots of alcohol. Appellant also testified that she pulled over at the first opportunity she had and that she drove away because she thought she was free to go. She further testified that she did not understand the implied consent warning and asked for an attorney so that she could learn what choices were available to her. Appellant admitted that she refused to take a preliminary breath test, but that she did so because she did not understand “when or where or how” she was expected to submit to the test. She testified her behavior that evening was due to her intoxication.
In an order filed March 11, 2002, the district court found appellant guilty of felony-level fleeing a police officer and refusing to submit to alcohol testing in the third degree. This appeal follows.
Appellant contends that the stop of her vehicle was improper because the officer lacked a rational basis to effectuate the stop. More specifically, appellant claims she was a victim of discriminatory enforcement and was stopped solely because she is African-American. Because appellant did not raise this issue before the trial court, and because appellant did not create the necessary factual record for this court to review such a claim, appellant has waived this claim on appeal. State v. Brovold, 477 N.W.2d 775, 777 (Minn. App. 1991), review denied (Minn. Jan. 17, 1992). Moreover, appellant’s claim is untimely because discriminatory enforcement claims are more properly raised in pretrial proceedings. State v. Hyland, 431 N.W.2d 868, 873 (Minn. App. 1988). “The issue of discriminatory enforcement should be decided prior to a trial on the merits because ‘it does not go to the guilt or innocence of the particular defendant.’” Id. (quotation omitted). Therefore, we decline to consider this issue.
Appellant next contends that she was not properly informed of her rights under the implied consent laws because the officer failed to specify that appellant had a choice between the three types of tests available to her. She also contends that she was denied the right to counsel. We reject both of these arguments.
“The implied consent law provides that any person who drives a motor vehicle consents to a chemical test to determine the presence of alcohol.” Busch v. Comm’r of Pub. Safety, 614 N.W.2d 256, 258 (Minn. App. 2000). Test refusal results in revocation of an individual’s driver’s license for a period of one year. Minn. Stat. § 169A.52, subd. 3(a) (2000). Determining whether an individual refused a test is a question of fact. Busch, 614 N.W.2d at 258.
Here, Officer Lowther asked appellant numerous times to submit to field sobriety tests. Each time she refused. After appellant’s apprehension and arrest, Officer Lowther read her the implied consent warning at least three times and asked several times whether she would take an alcohol test. Appellant continuously interrupted him, stating that she would not take the test until she knew what her rights were. Officer Lowther interpreted her answers as a refusal to take an alcohol test.
Moreover, the district court found that
Officer Lowther requested [appellant] to submit to a chemical test by reading her the implied consent advisory. He read it to her at least twice. * * * [Appellant] did not submit to any testing for alcohol. * * * [Appellant] by her behavior consistently refused to submit to a chemical test for alcohol. Locking the door mechanism of her vehicle manifested her intent to frustrate the implied consent process. Her disruptive interjections and her non answers were calculated to frustrate the implied consent process.
The implied consent law does not require that an officer give a choice between blood, breath, or urine tests, only that “a test” is offered. Minn. Stat. § 169A.51, subd. 2(1) (2000) (stating DWI suspect must take “a test”). “Due process does not require an arresting officer to offer an initial choice among tests.” Moe v. Comm’r of Pub. Safety, 574 N.W.2d 96, 98 (Minn. App. 1988) (holding that attorney, not police officer, is proper source of legal advice when explaining implied consent advisory), review denied (Minn. Apr. 14, 1998). An officer who requests that a DWI suspect take a test may direct which test a suspect take, so long as the officer offers an alternative test on refusal. See, e.g., State v. Hagen, 529 N.W.2d 712, 714 (Minn. App. 1995) (holding that police properly offered DWI suspect choice of alternate alcohol test within meaning of implied consent statute). Officer Lowther offered appellant the choice to take an alcohol test numerous times. Appellant repeatedly refused to do so, both through her words and conduct. We note that appellant does not contend that she was confused by Officer Lowther’s failure to identify the available tests, nor that her response to the testing requirement would have been different had he explained she could choose a blood, breath, or urine test to measure the amount of alcohol in her body. Thus, we conclude that appellant’s rights under the implied consent laws were not violated.
Appellant also maintains that she was deprived of her right to counsel when she asked for an attorney, or the opportunity to call one, but was not given access to a telephone. The limited right to counsel comes into existence in DWI situations when the driver is properly advised of the right and, upon request, elects to contact an attorney. Friedman v. Comm’r of Pub. Safety, 473 N.W.2d 828, 835 (Minn. 1991); Jones v. Comm’r of Public Safety, 660 N.W.2d 472, 475 (Minn. App. 2003) (drivers have right to reasonable opportunity to consult with counsel before taking alcohol concentration test). But behavior aimed at frustrating the implied consent process may constitute a retraction of the original request for an attorney. State v. Collins, 655 N.W.2d 652, 658 (Minn. App. 2003), review denied (Minn. Mar. 26, 2003).
Beyond the duty to make the initial decision of whether or not to submit to a test, the courts have recognized that the implied consent law imposes on a driver a requirement to act in a manner so as to not frustrate the testing process. If a driver does frustrate the process, [her] conduct will amount to a refusal to test.
Busch, 614 N.W.2d at 259. Here the district court found that Officer Lowther did not deny appellant her limited right to counsel. The district court stated:
[Appellant] did interrupt his reading of the advisory to ask if he could give her a phone. There was no phone in the squad car. But when Officer Lowther specifically offered to take [appellant] to a place where she could use a telephone [appellant] did not respond to that request. When Officer Lowther asked her specifically whether she wanted to consult with an attorney she failed to respond. [Appellant’s] conduct constitutes a retraction of an ambiguously made request to use the telephone or to consult with an attorney.
Appellant claims to have been confused about the process, but unless an officer misleads the driver or makes no attempt to explain to the driver her testing obligation, confusion is not an acceptable basis for test refusal. Linde v. Comm’r of Pub. Safety, 586 N.W.2d 807, 810 (Minn. App. 1998) (driver’s confusion about whether he had already submitted to testing not reasonable basis to refuse testing), review denied (Minn. Feb. 18, 1999); Sigfrinius v. Comm’r of Pub. Safety, 378 N.W.2d 124, 126-27 (Minn. App. 1985) (driver’s subjective confusion did not affect refusal where driver was properly informed law, including presumption of refusal). We note also that when Officer Lowther first stopped her car, appellant, a BCA employee, remarked, “I train you all to do this.”
Because appellant’s repeated interruptions and non-responsive answers to Officer Lowther’s questions clarifying whether she desired to contact an attorney frustrated the implied consent process, the trial court’s conclusions are not clearly erroneous, and we will not disturb them.
Finally, appellant claims that the evidence is insufficient to sustain her conviction for fleeing a police officer because she was too intoxicated to form the specific intent to flee. In reviewing a sufficiency of the evidence claim, the standard of review this court applies is clear and well-established. This court applies the same standard to sufficiency-of-the-evidence claims whether the fact-finder was a judge or jury. State v. Hough, 585 N.W.2d 393, 396 (Minn. 1998). We are “limited to ascertaining whether, given the facts in the record and the legitimate inferences that can be drawn from those facts, a [fact-finder] could reasonably conclude that the defendant was guilty of the offense charged.” State v. Merrill, 274 N.W.2d 99, 111 (Minn. 1978). Moreover, the fact-finder “is in the best position to evaluate the witnesses’ credibility” and is bound by the assumption that the trier of fact believed the state’s witnesses and disbelieved any evidence to the contrary. State v. Henderson, 620 N.W.2d 688, 705 (Minn. 2001) (citations omitted).
An offender’s intent is determined by examining the individual’s words and actions in light of the surrounding circumstances. State v. Whisonant, 331 N.W.2d 766, 768 (Minn. 1983). Also, we may infer intent from an offender’s conduct both before and after the offense. Davis v. State, 595 N.W.2d 520, 526 (Minn. 1999). Moreover, an offender’s statements are not binding on the fact-finder if the offender’s conduct demonstrates a contrary purpose. State v. Cooper, 561 N.W.2d 175, 179 (Minn. 1997). “Evidence of intent need not be conclusive in order to sufficiently support the conviction * * * .” State v. Duea, 414 N.W.2d 513, 515 (Minn. App. 1987).
An offender’s “consumption of intoxicants does not create a presumption of intoxication and the possibility of intoxication does not create the presumption that a defendant is thereby rendered incapable of intending to do a certain act.” State v. Torres, 632 N.W.2d 609, 617 (Minn. 2001). Moreover, our courts have “never held that the mere fact that the defendant was intoxicated means that [s]he was incapable of forming the requisite intent.” State v. Hale, 453 N.W.2d 704, 707 (Minn. 1990).
Here, the district court found that
[Appellant] was intoxicated, but not so intoxicated that she was incapable of forming intent to allude [sic] the police. * * * [Appellant] testified that she thought she was free to leave after the initial stop and that is why she drove off. [Appellant] further testified that she only stopped the second time because her sister told her to and because the police * * * were * * * following her. This testimony is not credible in view of Officer Lowther’s testimony that he had a can of pepper spray in his hand and was attempting to open [appellant’s] car door when she drove off initially.
Given the facts in the record and the legitimate inferences that can be drawn from those facts, we conclude that the evidence in the record is sufficient to uphold appellant’s conviction for fleeing a police officer.
* Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to Minn. Const. art. VI, § 10.