This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. ß 480A.08, subd. 3 (2002).
IN COURT OF APPEALS
State of Minnesota,
Mille Lacs County District Court
File No. K3-02-924
John M. Stuart, State Public Defender, Ann McCaughan, Assistant State Public Defender, 2221 University Avenue Southeast, Suite 425, Minneapolis, MN† 55414 (for appellant)
Mike Hatch, Attorney General, Darren Dejong, Assistant Attorney General, 1800 NCL Tower, 445 Minnesota Street, St. Paul, MN† 55101; and
Janice S. Kolb, Mille Lacs County Attorney, Courthouse Square, 525 Second Street Southeast, Milaca, MN† 56353 (for respondent)
††††††††††† Considered and decided by Randall, Presiding Judge; Kalitowski, Judge; and Wright, Judge.
Appellant challenges the district courtís denial of his motion to dismiss the charge of first-degree refusal to submit to chemical testing.† Appellant argues that, when the police officer did not repeat the implied-consent advisory at the time that the officer offered appellant the option of taking a blood test, the officer failed to comply with the implied-consent law.† We affirm.
Dobis was charged with several offenses including first-degree test refusal, a violation of Minn. Stat. ß 169A.20, subd. 2 (2002).† Dobis moved to dismiss the test refusal charge on the grounds that (1) Bloch did not request a blood test and a urine test contemporaneously, and (2) Bloch did not offer the implied-consent advisory before offering the blood test.† The district court concluded that the statutory requirements of the implied-consent law were satisfied and denied the motion.† The parties agreed to submit the case to the district court on stipulated facts under the procedure set forth in State v. Lothenbach, 296 N.W.2d 854 (Minn. 1980).† The district court found Dobis guilty of first-degree test refusal, and this appeal followed.†
The purpose of the implied-consent advisory is to inform the driver of the serious consequences of his or her refusal to submit to testing.† See Nyflot v. Commír of Pub. Safety,369 N.W.2d 512, 517 & n.3 (Minn. 1985).† An officer is required to give only the information mandated under the implied-consent law.† State v. Gross, 335 N.W.2d 509, 510 (Minn. 1983).† Once the implied-consent advisory has been given, an officer need not repeat the implied-consent advisory when requesting an alternate test.† State v. Fortman, 493 N.W.2d 599, 601 (Minn. App. 1992); Hansen, 393 N.W.2d at 705.†††
Dobis does not argue that Bloch failed to offer alternative tests or that Bloch misled him to believe that refusing to test was reasonable.† Rather, Dobis argues that he forgot the consequences of refusing to test within the one-hour time span between the initial reading of the implied-consent advisory and the offer of a blood test, thereby creating a need for Bloch to repeat the advisory with each testing request.†
To the contrary, in Fortman and Hansen, we determined that ďneither the statute nor relevant case law requires a re-reading of the entire implied-consent advisory before an alternative sample is requested.Ē† Fortman,493 N.W.2d at 601 (affirming revocation where defendant was given two readings of the implied-consent advisory but the advisory was not read in its entirety during the second reading); Hansen,393 N.W.2d at 705 (reversing the district courtís determination that the officer needed to repeat the implied-consent advisory upon offering alternative tests).†
The district court correctly concluded that Bloch fulfilled the requirements of the implied-consent law.† Dobis read the implied-consent advisory once prior to requesting the tests, thereby informing Dobis of the consequences of refusing to test.† Moreover, Dobis stated to Bloch that he understood the advisory, and Dobis did not ask any questions regarding the consequences of test refusal after the second request.† Accordingly, Bloch complied with the requirements of the implied-consent law.†
Dobis also asserts that he was improperly convicted of test refusal because, although he initially refused to take a preliminary breath test (PBT) during his transport to the jail, he subsequently consented to taking a breath test while in custody.† This argument is also unavailing.† The test refusal conviction is not based on Dobisís refusal to take the PBT.† Indeed, the officer chose not to offer a breath test as a means to establish whether Dobis was driving while impaired because Bloch suspected that Dobis was impaired by methamphetamine in addition to alcohol.† The officerís actions were in accord with Minn. Stat. ß 169A.51, subd. 3, which permits the officer to select the test methods offered.† Thus, Dobisís offer to take a breath test does not preclude a conviction for test refusal when the test choice presented to him was either a blood or urine test.†