This opinion will be unpublished and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,
Kelly Dawn Raymond,
Filed January 13, 2004
Scott County District Court
File No. 2001-03015
Mike Hatch, Attorney General, 1800 NCL Tower, 445 Minnesota Street, St. Paul, Minnesota 55101-2134; and
Patrick J. Ciliberto, Scott County Attorney, Todd P. Zettler, Special Assistant County Attorney, Government Center JC340, 200 Fourth Avenue West, Shakopee, Minnesota 55379 (for respondent)
Samuel A. McCloud, Carson J. Heefner, Suite 1000, Circle K, Box 216, Shakopee, Minnesota 55379 (for appellant)
Considered and decided by Harten, Presiding Judge; Peterson, 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 a conviction for gross-misdemeanor driving under the influence of alcohol, appellant contends the district court erred by admitting her blood-test results. Appellant argues that the results were inadmissible at trial because the officer who ordered the blood test failed to offer her the option of a blood, urine, or breath test pursuant to Minn. Stat. § 169A.51, subd. 3 (2000). We affirm.
On November 17, 2000, appellant Kelly Dawn Raymond was involved in a three-car motor-vehicle accident. Shortly after the accident, Trooper John M. Thompson arrived at the scene and observed a strong odor of alcohol on appellant’s breath, bloodshot and watery eyes, and slurred speech. Appellant admitted to consuming a few beers and took a preliminary breath test, which indicated an alcohol concentration of .236. One of the other drivers involved in the accident suffered bruising and abrasions to his chest, left hip, and knees as a result of the accident.
Appellant was taken to St. Francis Medical Center where Trooper Thompson read appellant the implied-consent advisory and told appellant that, because she was involved in a motor-vehicle accident with injuries, he would take her blood sample for analysis. Appellant contacted her attorney and then stated that she would not take the blood test because her attorney “told her not to.” Nevertheless, blood was taken, without appellant’s consent, and submitted for testing. Appellant was charged with gross misdemeanor driving under the influence of alcohol.
Appellant moved to suppress the blood-test results arguing that because Trooper Thompson did not allow her to fully exhaust her options for testing under the implied-consent laws, the results were inadmissible pursuant to Minn. Stat. § 169A.51, subd. 3 (2000). The district court denied appellant’s motion. The case was tried before a judge on stipulated facts. After trial, appellant was convicted. This appeal follows.
“When reviewing pretrial orders on motions to suppress evidence, we 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).
Appellant argues that the district court erred by admitting her blood-test results as evidence because she did not “fully” refuse testing under the implied-consent law. Appellant contends that because Trooper Thompson did not give her a choice of tests pursuant to Minn. Stat. § 169A.51, subd. 3, she was never afforded the opportunity to refuse testing. Appellant contends without her full refusal, Trooper Thompson was not allowed to invoke the portion of the implied-consent law that allows involuntary testing.
Minn. Stat. § 169A.51, subd. 3, requires that when an officer is testing an individual pursuant to the implied-consent law, the officer must offer the individual an option of a blood, urine, or breath test. But in this case, Trooper Thompson was not proceeding under the implied-consent law. While Trooper Thompson did read appellant a portion of the implied-consent advisory, he also clearly indicated that he would be taking appellant’s blood with or without her consent because this was a personal-injury accident. We believe this statement indicated that Trooper Thompson was not operating under the implied-consent laws.
The state may constitutionally compel an individual to submit to a blood test against his or her will and use the test results in a criminal prosecution when the exigent circumstances presented by the valid determination of alcohol in the blood is present. Schmerber v. California, 384 U.S. 757, 772, 86 S. Ct. 1826, 1836 (1966); State v. Scott, 473 N.W.2d 375, 376-77 (Minn. App. 1991). The implied-consent law, however, was enacted to avoid such compulsion and provide a statutory mechanism for inducing consent to testing. Scott,473 N.W.2d at 377. Police may compel a test without proceeding under the implied-consent law, however, when they have probable cause to believe an individual was driving under the influence of alcohol, was criminally negligent in causing an accident, and the blood sample is necessary to preserve evidence of defendant’s guilt. Tyler v. Comm’r of Pub. Safety, 368 N.W.2d 275, 278 (Minn. 1985). The probable cause that is required for the removal of blood in that situation 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). The necessity of immediate action to avoid the loss of this evidence is an exigent circumstance justifying the warrantless taking of blood. Tyler, 368 N.W.2d at 278; State v. Speak, 339 N.W.2d 741, 744 (Minn. 1983); State v. Oevering, 268 N.W.2d 68, 72 (Minn. 1978).
Here, because Trooper Thompson was not operating under the implied-consent law he was not required to offer appellant test options. To order the blood test, Trooper Thompson only needed probable cause and exigent circumstances. Trooper Thompson clearly had probable cause to believe that a blood test would aid in the prosecution of the crime of criminal vehicular operation based on his observations of: a strong odor of alcohol on appellant’s breath, bloodshot and watery eyes, slurred speech, appellant’s admission to consuming a few beers, and appellant’s preliminary breath test indicating an alcohol concentration of .236. Further, the supreme court has held that the necessity of immediate action to avoid the loss of this evidence is an exigent circumstance justifying the warrantless removal of blood. Tyler,368 N.W.2d at 278; Speak, 339 N.W.2d at 744; Oevering, 268 N.W.2d at 72. Therefore, admission of the blood-test results was not error.