This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (2004).
IN COURT OF APPEALS
Dakota County District Court
File No. C3033082
David L. Ayers, Ayers & Reihm, P.A., Suite 100, Riverwood Place, 880 Sibley Memorial Highway, Mendota Heights, MN 55118 (for appellant)
Mike Hatch, Attorney General, Sean R. McCarthy, Assistant Attorney General, Suite 1800, NCL Tower, 445 Minnesota Street, St. Paul, MN 55101-2134 (for respondent)
Considered and decided by Stoneburner, Presiding Judge; Harten, Judge; and Shumaker, Judge.
On appeal from the district court’s order sustaining revocation of his driver’s license, appellant argues that the district court erred by determining that appellant was not actively misled into consenting to testing to detect his alcohol concentration. We affirm.
Whether an officer’s statements explaining or advising a driver of his rights under the implied-consent law violate due process by actively misleading the driver about his statutory obligation to submit to alcohol testing is a question of law. Fehler v. Comm’r of Pub. Safety, 591 N.W.2d 752, 754 (Minn. App. 1999), review denied (Minn. July 28, 1999). “We overturn conclusions of law only upon a determination that the trial court has erroneously construed and applied the law to the facts of the case.” Id. (quotation omitted).
Officers are required to provide DWI suspects with an advisory regarding their rights under the implied-consent statute. Minn. Stat. § 169A.51, subd. 2 (2002) (providing suspects must be informed that law requires them to take a test to determine if they are under the influence, that refusal to take the test is a crime, and that they have a right to consult with an attorney but may not “unreasonably delay” taking test). The arresting officer must also assist in vindicating a driver’s right to consult with an attorney, such as by providing a telephone and reasonable time to call an attorney. Hartung v. Comm’r of Pub. Safety, 634 N.W.2d 735, 738 (Minn. App. 2001), review denied (Minn. Dec. 11, 2001).
Appellant, who was read the standard implied-consent advisory and who did not exercise his right to speak with an attorney, argues that the arresting officer actively misled him by telling him that no matter what the result of his test, he would be charged with DWI. The Minnesota Supreme Court has previously held that a DWI advisory is actively misleading in violation of due process if it permits the police to threaten charges the state has no authority to impose. McDonnell v. Comm’r. of Pub. Safety, 473 N.W.2d 848, 853 (Minn. 1991). But in this case, the officer testified that at the time he answered appellant’s question he had already determined to charge appellant with DWI regardless of the test results, based on his observations of appellant’s appearance and erratic driving. And an officer may issue a citation for driving while under the influence, which is not based on test results. Minnesota law explicitly provides for initiation of criminal charges by the arresting officer. See Minn. R. Crim. P. 1.04(c), 4.02, subd. 5(3), and 6.01, subd. 1(1)(a), providing for officers to issue citations for DWI. Because the officer did not threaten charges the state was unauthorized to impose, we conclude that the officer did not actively mislead appellant to consent to testing in violation of his due-process rights.
Appellant also argues that he was actively misled because the officer failed to tell him that if he tested less than 0.10, his license would not be revoked. But appellant only asked about the consequences of a test result similar to his PBT (preliminary breath test), which was over 0.10. The officer was not required to answer questions appellant did not ask.
“[D]ue process does not require that the advisory explain every potentially unclear application of the law.” Fehler, 591 N.W.2d at 754 (quotation omitted).
The United States Supreme Court made clear in South Dakota v. Neville, 459 U.S. 553, 103 S. Ct. 916, 74 L.Ed.2d 748 (1983), that a state does not violate the fundamental fairness inherent to due process by choosing not to advise individuals of all the possible consequences they could face in refusing a breath test.
McDonnell, 473 N.W.2d at 853.
We have previously addressed a situation where an arresting officer answered questions posed by a DWI suspect after giving the suspect a standard implied-consent advisory. Dehn v. Comm’r of Pub. Safety, 394 N.W.2d 272 (Minn. App. 1986). In Dehn, we held that an officer did not violate due process by “merely responding to a question” and that the answer the officer gave in that situation was not “unduly coercive or confusing,” even though the officer “could have expanded his answer.” Id. at 274. See also State v. Christiansen, 515 N.W.2d 110, 112 (Minn. App. 1994) (stating that “[a]n officer is not required to give any more advice than ismandated by law” and finding no due-process violation in an officer’s failure to explicitly advise a suspect that he could call his parents to obtain the name of an attorney when the suspect did not tell the officer that his reason for calling his parents was to obtain the name of their attorney), review denied (Minn. June 15, 1994).
In this case, as in Dehn, the officer responded truthfully to appellant’s questions. Because the officer accurately answered the questions appellant asked and did not threaten charges that could not be imposed, appellant was not actively misled into consenting to testing in violation of due process, and the district court did not err in so concluding.
Appellant asserts that he reasonably relied on the officer’s statements, but as respondent notes, appellant did not testify in these proceedings, so there is nothing in the record to support appellant’s allegations that he was so confused or misled by the officer’s statements that he was actively misled during the testing process. See State v. Webster, 642 N.W.2d 488, 492 (Minn. App. 2002) (rejecting claim of confusion caused by advisory language, in part because suspect did not testify he was actually confused by advisory.)
 The record reflects that appellant knew he had failed the preliminary breath test, because when asked if he would take the Intoxilyzer test, he said, “Well, we already failed that, correct?”