This opinion will be unpublished and

may not be cited except as provided by

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







State of Minnesota,





Robert Austin Nickelson, Jr.,



Filed December 16, 2003


Hudson, Judge


Olmsted County District Court

File No. K40111253


Mike Hatch, Attorney General, 1800 NCL Tower, 445 Minnesota Street, St. Paul, Minnesota 55101; and


Raymond F. Schmitz, Olmsted County Attorney, Eric M. Woodford, Assistant County Attorney, 151 Southeast Fourth Street, Rochester, Minnesota 55904 (for respondent)


John M. Stuart, State Public Defender, Leslie J. Rosenberg, Assistant Public Defender, 2221 University Avenue Southeast, Suite 425, Minneapolis, Minnesota 55414 (for Nickelson)


            Considered and decided by Peterson, Presiding Judge; Schumacher, Judge; and Hudson, Judge.

U N P U B L I S H E D   O P I N I O N


On appeal from his conviction of criminal vehicular homicide and criminal vehicular operation, appellant Robert Nickelson argues that his conviction should be reversed because:  (1) the police did not have probable cause to draw his blood at the accident scene; and (2) the state violated his right to due process by intentionally and knowingly allowing his blood sample to spoil.  In addition, Nickelson argues that the sentencing court erred by sentencing Nickelson to the presumptive guideline sentence rather than granting him a downward departure.  We affirm.


On the night of December 17, 2000, Nickelson was driving his vehicle northbound on 60th Avenue Southeast when he collided with a vehicle owned by Terrence Eugene Brown.  At the time of the accident, Brown was attempting to pull another vehicle out of the snow on the side of the roadway and had his vehicle positioned perpendicular in the roadway.  Keith Ede was on the roadside assisting Brown when the collision occurred and Ede was struck by Nickelson’s vehicle.  Ede suffered significant head and body trauma and died of his injuries several weeks later.

            When the police arrived at the scene, Nickelson was pinned in his car, unconscious and covered in paint.[1]  Deputy Thompson attempted to help Nickelson out of his car and also became covered in paint.  Thompson stated that after he became covered in oil-based paint, the smell of the paint dominated his smelling capabilities.  Another officer at the scene stated that there were no skid marks on the scene, indicating that Nickelson did not apply his brakes. 

The paramedics transferred Ede, Brown, and Nickelson to St. Mary’s Hospital by ambulance.  When Deputy Thompson arrived at the hospital, Nickelson had bandages over his eyes and an oxygen mask over his mouth.  At the hospital, Thompson read Nickelson the Implied Consent Advisory but Nickelson did not consent to having his blood taken.  Thompson informed Nickelson that they would take his blood anyway. 

            Detective Wickelgren was present during Thompson’s questioning of Nickelson.  During the questioning, Wickelgren leaned close to Nickelson to hear Nickelson’s answers to Thompson’s questions.  At that time, Wickelgren smelled the odor of alcohol on Nickelson’s breath.  Wickelgren did not convey his suspicions of alcohol use to Thompson any time prior to or during the blood draw.  

            Paramedic Michael Sveen collected a blood sample from Nickelson.  The blood kit was sent to the Bureau of Criminal Apprehension (BCA) laboratory for analysis.  Jody Nelson, a forensic scientist with the BCA, tested the blood sample twice.  Nickelson’s blood alcohol concentration was .25.  After testing the blood, Nelson re-sealed the blood kit and returned it to Olmsted County. 

Michelle Ness, evidence coordinator, requested that the BCA return the blood sample to Olmsted County.  The blood sample arrived at the Law Enforcement Center in Olmsted County on March 9, 2001, and was stored in the evidence room at room temperature.  Ness testified that the only blood kits retained in the refrigerator after returning from the BCA are blood kits, or DNA kits, taken on a homicide.  Ness testified that she has never refrigerated a DWI blood kit returned after testing at the BCA.  On November 28, 2001, Nickelson asked for his blood sample for re-testing.  Because the blood sample was not refrigerated, it had spoiled.

Before trial, Nickelson made various motions to suppress the use of his blood-test results as evidence at the trial.  On August 9, 2002, a jury found Nickelson guilty of criminal vehicular homicide and criminal vehicular operation.  On September 26, 2002, the court sentenced Nickelson to 48 months in jail for criminal vehicular homicide and one year in jail for criminal vehicular operation.  The court ordered that Nickelson serve his sentence for criminal vehicular operation concurrently with the 48-month sentence for criminal vehicular homicide.  This appeal follows.


Probable Cause

Nickelson contends that the police did not have probable cause to draw his blood; rather, they simply sought to draw blood from everyone at the scene.  We disagree.

A determination of probable cause is a mixed question of fact and law.  Clow v. Comm'r of Pub. Safety, 362 N.W.2d 360, 363 (Minn. App. 1985), review denied (Minn. Apr. 26, 1985).  Because the trial court has the opportunity to judge the credibility of the witnesses, findings of fact will not be set aside unless clearly erroneous.  Thorud v. Comm'r of Pub. Safety, 349 N.W.2d 343, 344 (Minn. App. 1984).  Conclusions of law will be overturned when there is a showing that the district court has erroneously construed and applied the law.  Dehn v. Comm'r of Pub. Safety, 394 N.W.2d 272, 273 (Minn. App. 1986).  After the facts are determined, this court must legally determine whether probable cause existed.  Flamang v. Comm’r of Pub. Safety, 516 N.W.2d 577, 580 (Minn. App. 1994), review denied (Minn. July 27, 1994). 

The probable cause required for the removal of blood is the probable cause to believe not that the defendant is intoxicated, but rather that the test will result in the discovery of evidence that will aid in the prosecution of that crime.  State v. Lee, 585 N.W.2d 378, 382 (Minn. 1998).  An officer may have probable cause even if none of the commonly known physical indicia of intoxication are present.  Id. (finding evidence of fatal accident involving drinking and extreme inattention of defendant constituted probable cause); Heuton v. Comm’r of Pub. Safety, 541 N.W.2d 361, 363 (Minn. App. 1995) (stating under certain circumstances an officer may need only “one objective indication of intoxication to constitute probable cause to believe a person is under the influence”). 

For purposes of determining probable cause, the collective knowledge of all the police officers is imputed to the arresting officer.  State v. Conaway, 319 N.W.2d 35, 40 (Minn. 1982).  Under the collective-knowledge approach, officers are allowed to act on the strength of information received from their peers.  Id.

Here, the record establishes that Deputy Thompson relied on the following facts to support his finding of probable cause:  (1) a serious accident had taken place; (2) beer cans were found at the accident scene; and (3) there was no evidence at the scene that Nickelson attempted to slow down.[2]  In addition, we are persuaded that under the collective-knowledge doctrine, Detective Wickelgren’s observation that Nickelson had alcohol on his breath was appropriately part of Deputy Thompson’s collective knowledge for probable cause purposes. 

Based on these facts, we are satisfied that the sum of Deputy Thompson’s knowledge allowed him to conclude that drawing Nickelson’s blood could lead to evidence that would assist in the prosecution of a crime.

Failure to Preserve Evidence

Next, Nickelson argues that the state violated his right to due process by intentionally and knowingly allowing his blood sample to spoil. 

The Due-Process Clause of the Fourteenth Amendment requires the government to deliver exculpatory evidence into “the hands of the accused, thereby protecting the innocent from erroneous conviction and ensuring the integrity of our criminal justice system.”  State v. Schmid, 487 N.W.2d 539, 541 (Minn. App. 1992), review denied (Minn. Sept. 15, 1992) (quoting California v. Trombetta, 467 U.S. 479, 485, 104 S. Ct. 2528, 2530 (1984)).

But the constitutional duty to preserve evidence on behalf of criminal defendants is subject to a standard of materiality.  Schmid, 487 N.W.2d at 541.  To meet this standard, evidence must (1) possess an exculpatory value that was apparent before the evidence was destroyed; and (2) be of such a nature that the defendant would not be able to obtain comparable evidence by other reasonably available means.  Id.  Additionally, unless a criminal defendant can demonstrate bad faith on the part of the police, failure to preserve potentially exculpatory evidence does not amount to a denial of due process.  Arizona v. Youngblood, 488 U.S. 51, 58, 109 S. Ct. 333, 337 (1988), reh'g denied, 488 U.S. 1051, 109 S. Ct. 885 (1989)Here, we are persuaded that the failure to preserve Nickelson’s blood sample does not warrant reversal for three reasons. 

First, the evidence did not have an exculpatory value that was apparent before the evidence was destroyed.  The BCA tested the blood sample twice under standard procedures in December of 2000 and returned the sample to the police in March 2001.  Nickelson’s own expert testified that the sample would likely produce unreliable results three months after the previous testing.  But Nickelson did not request the blood for re-testing until November of 2001.  Thus, even if the blood had been stored in the refrigerator, testing the blood eleven months after it was first tested would likely produce unreliable results.  Because the request wasso long after the blood was drawn it is unlikely that the re-testing of this blood would be exculpatory.

            Second, Nickelson likely had access to this evidence through other means.  It is difficult to believe that after such a serious accident the hospital would not independently draw Nickelson’s blood.  Thus, Nickelson could have performed independent tests on his blood sample and chose not to conduct such tests.

Finally, there is no evidence the destruction of Nickelson’s blood sample was intentional.  Ness’s testimony indicates that she never refrigerates DWI blood samples after they are returned from the BCA and was never told this was something she should do.  Ness also testified that even if she were to store the DWI blood samples, she would not have enough room to store every sample.  We do not believe Olmsted County’s customary practice of not storing DWI blood samples shows bad faith on the part of law enforcement. 

            Therefore, on the record before us, the failure to preserve appellant’s blood evidence does not warrant reversal of Nickelson’s conviction. 

Downward Departure

Finally, Nickelson argues that because he did not solely cause the accident, was remorseful, had no criminal history, and was found amenable to treatment, the court clearly abused its discretion by denying his request for a downward departure. 

            At the sentencing hearing, the district court found that on the day of the accident Nickelson “acted with callous indifference to public safety.”  The court found that there were no compelling reasons for a downward departure because Nickelson was drinking for four to six hours before the accident, was told by friends that he was not fit to drive, and was offered an alternative mode of transportation, but chose to drive anyway.  In addition, the court distinguished Nickelson’s behavior from Brown’s behavior because although Brown had also been drinking prior to the accident, Brown had not intended to drive. 

“[A] sentencing court has no discretion to depart from the sentencing guidelines unless aggravating or mitigating factors are present.”  State v. Spain, 590 N.W.2d 85, 88 (Minn. 1999).  If the district court determines that such factors are present, the decision to depart from the sentencing guidelines rests within its discretion and an appellate court will not reverse absent a clear abuse of that discretion.  State v. Givens, 544 N.W.2d 774, 776 (Minn. 1996).  “Substantial and compelling circumstances are those circumstances that make the facts of a particular case different from a typical case.”  State v. Peake, 366 N.W.2d 299, 301 (Minn. 1985). 

Generally, when determining whether to depart in sentencing, a district court must decide “whether the defendant’s conduct was significantly more or less serious than that typically involved in the commission of the crime in question.”  State v. Broten, 343 N.W.2d 38, 41 (Minn. 1984).  An appellate court will rarely reverse a sentencing court’s refusal to depart.  State v. Kindem, 313 N.W.2d 6, 7 (Minn. 1981).

Here, while it is true that Nickelson’s pre-sentence investigation report found Nickelson would likely be amenable to treatment and appeared remorseful, both the pre-sentence investigation reporter and the sentencing court felt that Nickelson’s behavior the day of the accident was so serious that it would not be appropriate to grant a downward sentencing departure.  The mere fact that a mitigating factor is present does not obligate the court to grant a downward departure.  State v. Oberg, 627 N.W.2d 721, 724 (Minn. App. 2001), review denied (Minn. Aug. 22, 2001).

Further, this court has upheld an enhanced sentence when a defendant shows callous indifference to the safety of others.  See State v. Wilkinson, 539 N.W.2d 249 (Minn. App. 1995) (driving a snowmobile with .17 BAC helped support quadruple departure for leaving scene of an accident); State v. Herrmann, 479 N.W.2d 724 (Minn. App. 1992) (enhancing defendant’s sentence by less than double when defendant drove despite the warnings of others and knowing he was drunk), review denied (Minn. Mar. 19, 1992). 

Therefore, in this case, the sentencing court did not abuse its discretion by sentencing appellant to the presumptive guideline sentence.



[1] Nickelson was a commercial painter and he had his equipment and paint in his van.  Apparently, numerous paint cans were thrust toward the front of appellant’s van at the time of the collision.


[2] It is of note that when Deputy Thompson was helping appellant out of his car, Thompson became covered in oil-based paint, which dominated his smelling capabilities.  Thus, Thompson was unable to detect the smell of alcohol on Nickelson’s breath and was forced to rely on other indicia of intoxication to determine whether he had probable cause.