This opinion will be unpublished and

may not be cited except as provided by

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







Kamran Makki, petitioner,





Commissioner of Public Safety,




Filed June 29, 2004


Huspeni, Judge*



Hennepin County District Court

File No. IC 482761



Paul B. Ahern, Paul B. Ahern, P.A., 5101 Thimsen Avenue, Minnetonka, MN 55345 (for appellant)


Mike Hatch, Attorney General, Sean R. McCarthy, Assistant Attorney General, 1800 NCL Tower, 445 Minnesota Street, St. Paul, MN  55101 (for respondent)



            Considered and decided by Kalitowski, Presiding Judge, Wright, Judge, and Huspeni, 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.  He contends that his revocation should be rescinded because the officer repeatedly advised him that if he did not provide an adequate breath sample he could retake the test, but when he failed to provide a second adequate sample, the officer did not allow him to retest and instead revoked his driver’s license.  Because the district court did not clearly err in determining that appellant refused testing and that he was not confused by the officer’s comments, we affirm.


In the early morning hours of July 4, 2004, Police Officer Robert Johnston stopped appellant Kamran Makki and arrested him for DWI.  The officer read the implied consent advisory to appellant, who agreed to take a breath test.

The officer conducted the test using an Intoxilyzer 5000, which requires two adequate breath samples.  A tone sounds as long as the person’s breath pressure is sufficient; it will stop sounding when the pressure is insufficient.  The driver has a four-minute period to provide each sample. 

The tone sounded six times while appellant was providing his first breath sample.  He nonetheless provided an adequate sample that indicated an alcohol concentration of .11.  While he was giving the second sample, the tone sounded 24 times and he did not provide an adequate sample before the four-minute period lapsed.  The officer explained that appellant blew very softly, he stopped and started numerous times, he blew around the mouthpiece, and he would not make a proper seal.  The officer continually urged appellant to blow and warned him that the time would run out and that he would have to do it again.  The four-minute period lapsed and appellant did not provide a second adequate sample. 

Comments made by the officer during the testing procedure form the basis of appellant’s argument that additional testing should have been allowed.  During the production of the first sample, the officer commented:

You’re going to have to do it over and over and over and over if you don’t do it right.


. . . .


. . .  It’s not going to work if you don’t do it.  It’s going to time out and we’re going to have to start all over again.  So the more you dink around with it, the longer you’re going to be here, okay? 


During appellant’s attempt to provide the second adequate sample, the officer stated:

You need enough air to keep the tone going or it will not accept the test and you’re going to have to keep doing this, okay?


. . . . 


Do you want to keep doing this over and over and over? 


. . . .


. . .  You’re going to time it out.


. . . .


You’re going to have to do it all over again.


The officer also warned appellant, however, that he blew a deficient sample because he was “screwing around with the test” and not doing his best, that he should make “a good seal and blow as hard as you possibly can for as long as you possibly can,” that the marked difference in the air volume provided during the first and second breath samples was evidence of an intentional refusal to blow as instructed, and that appellant was purposely delaying the test.  Despite the officer’s comments, appellant continued to ask if he could take the test again, and insisted that he had been doing his best.  After concluding the testing and after discussing with appellant whether it was “worth it” to allow him to try the test again, the officer consulted with the sergeant on duty, although not relating to him the content of the discussion with appellant during testing.  The decision was made that appellant was not, in fact, cooperating, and that the noncooperation constituted a refusal.  No further testing was conducted, and appellant’s driver’s license was revoked.

Appellant petitioned for judicial review of his license revocation.  After a hearing,[1] the district court sustained the license revocation and stated:

The issue here was presented to me in the context first was there a refusal.  Second, if there was a refusal . . . was it reasonable because the officer said something that was confusing or misleading and because of that, should a second test have been offered.


I don’t need briefs.  . . .  I listened carefully to the cassette . . . .  I’ve reviewed carefully the comments on the bottom of the intoxilyzer test record.  [Appellant] has no one on the planet earth to blame other than himself for the fact that he didn’t give an adequate sample . . . . 


He simply, in my mind, as the officer told him at least 15 or 20 times, was screwing around and he refused to take the test . . . .


This appeal followed.


Whether a driver refused a test and whether that refusal was reasonable under the implied consent law is a question of fact that will not be set aside unless clearly erroneous.  State, Dep’t of Highways v. Beckey, 291 Minn. 483, 486-87, 192 N.W.2d 441, 444-45 (1971).  Conclusions of law will be reviewed de novo.  See Berge v. Comm’r of Pub. Safety, 374 N.W.2d 730, 732 (Minn. 1985). 

Under the implied consent law, an officer may require a driver to take a chemical test to determine the presence of alcohol.  Minn. Stat. § 169A.51, subd. 1 (2002).  When the officer requests a breath test, failure to provide two separate, adequate breath tests constitutes a refusal.  Minn. Stat. § 169A.51, subd. 5(c) (2002).  A driver may prove as an affirmative defense that the refusal was reasonable.  Minn. Stat. § 169A.53, subd. 3(c) (2002). 

Appellant concedes, as he must, that failure to provide two adequate breath samples usually constitutes a refusal under the implied consent law.  Minn. Stat. § 169A.51, subd. 5(c).  But he argues that because of the circumstances present here, the revocation should be rescinded.  Appellant argues that during the second four-minute period, the officer “repeatedly insisted” that if appellant did not provide an adequate sample, he would have to take another test.  But when the period lapsed, the officer did not allow him to take the test again, even when appellant asked, and instead determined that he refused testing.  Appellant argues that where the officer told him that his behavior would lead to one result, taking the test again, but then imposed a more serious sanction, a determination of refusal, his due process rights were violated.  At the very least, he contends that the statements were contradictory and confusing and that under the circumstances, the officer was obligated to allow appellant to take the test again before revoking his license for refusal.

We recognize that “due process does not permit those who are perceived to speak for the state to mislead individuals as to either their legal obligations or the penalties they might face should they fail to satisfy those obligations.”  McDonnell v. Comm’r of Pub. Safety, 473 N.W.2d 848, 854 (Minn. 1991).  A refusal may be reasonable if an officer actively misleads a driver as to the statutory obligation to take an implied consent test.  Id. at 853-54; cf. Gunderson v. Comm’r of Pub. Safety, 351 N.W.2d 6, 7 (Minn. 1984) (driver was obligated to submit to testing when officer’s comments did not mislead him as to obligation to take test).  Whether the driver was in fact confused by the officer’s comments is a question of fact for the district court to determine.  See Gunderson, 351 N.W.2d at 7; Golinvaux v. Comm’r of Pub. Safety, 403 N.W.2d 916, 919 (Minn. App. 1987).  A refusal may be reasonable if the driver is confused about his obligations under the implied consent law.  Gunderson, 351 N.W.2d at 7.  But if the driver is not confused, the revocation will be sustained.  See Golinvaux, 403 N.W.2d at 919 (affirming district court’s finding of no confusion or improper advice as to serious consequences of refusal).

We recognize, also, that a driver’s license is an important property interest subject to due process protection.  Bell v. Burson, 402 U.S. 535, 539, 91 S. Ct. 1586, 1589 (1971).  But “[I]mplied consent laws are remedial statutes, and must be liberally interpreted in favor of the public interest and against the private interest of the drivers involved.”  Ekong v. Comm’r of Pub. Safety, 498 N.W.2d 319, 322 (Minn. App. 1993).

In a very literal sense, appellant’s claim that he did not refuse is understandable – he did not affirmatively decline to take the test.  But he had a duty to comply with the test in good faith:

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 not to frustrate the testing process.  If a driver does frustrate the process, his conduct will amount to a refusal to test.


Busch v. Comm’r of Pub. Safety, 614 N.W.2d 256, 259 (Minn. App. 2000).  Further, failure to provide adequate breath samples constitutes refusal.  Minn. Stat. § 169A.51, subd. 5(c).

The district court clearly was convinced that appellant did not comply in good faith.  That judgment is highly dependent on the fact-finder’s assessment of the credibility of the witnesses and of other evidence on the record.  We see no clear error in the determination of the district court that there had been no representation that appellant would be provided additional tests, and therefore, that he refused to comply with the testing process.

Finally, appellant argues that the facts are not in dispute because the issue concerns the legal consequences of statements in evidence.  This argument, however, is directly contrary to appellant’s theory of the case that the officer’s comments confused him as to his obligations under the implied consent law.  The district court explicitly rejected appellant’s argument that the officer confused or misled him, and ruled that appellant had only himself to blame for the fact that he did not provide an adequate sample.  This finding is not clearly erroneous. 

The district court order sustaining appellant’s license revocation is affirmed.


*  Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to Minn. Const. art. VI, § 10. 

[1]  Appellant chose not to testify at the hearing.