This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (2004).






State of Minnesota,





Elmer Gerhard Erickson,



Filed February 15, 2005


Randall, Judge


Beltrami County District Court

File No. K9-03-143



Mike Hatch, Minnesota Attorney General, Catherine M. Keane, Assistant Attorney General, 445 Minnesota Street, Suite 1800, St. Paul, MN 55101; and


Timothy R. Faver, Beltrami County Attorney, David Frank, Assistant Beltrami County Attorney, Court Annex, Suite 40, 619 Beltrami Avenue Northwest, Bemidji, MN 56601 (for respondent)


Joel A. Foreman, Blair W. Nelson, Ltd., 1421 Bemidji Avenue North, Bemidji, MN 56601  (for appellant)


            Considered and decided by Halbrooks, Presiding Judge; Randall, Judge; and Klaphake, Judge.


U N P U B L I S H E D   O P I N I O N



Appellant challenges his conviction for first-degree test refusal, arguing that the trial court violated his due process right to present a defense by barring him from testifying that he refused testing in reliance on the erroneous advice of the attorney he contacted.  Appellant argues that the implied-consent statute, since it requires only probable cause to believe an arrestee was driving, violates due process and the requirement of proof beyond a reasonable doubt of all elements of a criminal offense.   Appellant also argues that the failure of the police officer to remedy his confusion, and the failure of the implied consent advisory to warn him that refusal could be a felony, prevented him from making an informed decision.  Finally, appellant argues that he was denied effective assistance of counsel by the attorney’s advice to refuse testing, pointing out that since he refused testing, he is somehow precluded from presenting the defense that he was not driving.  We affirm.


On January 24, 2003, appellant was arrested for driving while under the influence of alcohol (DWI).  The complaint in this matter was subsequently amended and appellant was charged with first-degree (felony) refusal to submit to a chemical test, Minn. Stat. § 169A.20, subd. 2 (2002).  Appellant moved to dismiss the charges in May 2003, claiming that (1) Minn. Stat. § 169A.20, subd. 2, violates due process, (2) he was not informed that refusal could constitute a felony, and (3) he received ineffective assistance of counsel prior to his refusal to submit to testing.  Appellant also moved the court to allow him to present evidence of the defense of reasonable refusal to the jury.  The trial court ultimately denied appellant’s motion to dismiss, and precluded appellant from presenting a reasonable refusal defense based on a claim of bad advice from counsel.

On December 9, 2003, appellant entered into an agreement with the state where he waived his right to a jury trial, agreed to submit a stipulated record to the trial court, and agreed that neither side would be able to cross-examine witnesses.  Based on the stipulated record, the trial court found appellant guilty of refusal to submit to chemical testing.  In a “memo” attached to its findings, the trial court indicated that “[o]n the evidence of record this Court would also convict the Defendant on the original First Degree DWI charge as well as Driving After Cancellation and Open Bottle.”  Appellant was sentenced to a stayed term of 36 months and was placed on probation for 5 years, with the condition that he serve 365 days in jail.  This was appellant’s sixth conviction of a DWI-related offense.  This appeal followed.



Right to Present a Defense

            Appellant argues that the trial court violated his right to present a defense of reasonable refusal by excluding testimony regarding the basis for his refusal to submit to the chemical test.  First, before analyzing whether the trial court properly excluded appellant’s proposed testimony, it should be noted that there appears to be some dispute as to whether or not this was a Lothenbach trial.  After examining the record, we find that it was not—appellant and the state agreed to a stipulated record, but appellant did not stipulate to the validity of the state’s case.  See State v. Verschelde 595 N.W.2d 192, 195 (Minn. 1999) (stating that “[t]he Lothenbach procedure calls ‘for the defendant to enter a plea of not guilty, waive his right to a jury trial, and then stipulate to the prosecution's case.’” (quoting State v. Lothenbach, 296 N.W.2d 854, 857 (Minn. 1980)).  

            We disagree with appellant’s argument that he did not get to present his basis for refusal.  Appellant was allowed to present evidence of the basis for his refusal to submit to testing at trial.  This is reflected in the stipulated record that was before the trial court.  Appellant’s offer of proof, which was part of the stipulated record, stated that (1) appellant made contact with an attorney, (2) appellant “would testify that this attorney either advised him not to take the test, or ‘suggested’ that it would be in [his] best interest to refuse the test,” and (3) the attorney “did not affirmatively advise him to take the test, nor did he tell [appellant] that refusal to take the test could be a felony.”  Nevertheless, we will still analyze appellant’s due process challenge to the district court’s pre-trial evidentiary ruling.   

1.         Rules of Evidence     

            When a defendant alleges a violation of his constitutional rights, evidentiary challenges are reviewed under an abuse-of-discretion standard.  State v. Jacobson, 681 N.W.2d 398, 408 (Minn. App. 2004) (citing State v. Profit, 591 N.W.2d 451, 463 (Minn. 1999)), review denied (Minn. Sept. 21, 2004).  This court has held that “[a] driver may assert as an affirmative defense that the refusal [to submit to testing] was based upon reasonable grounds.”  Haug v. Comm'r of Pub. Safety, 473 N.W.2d 900, 901-2 (Minn. App. 1991).  But this “does not mean that under any and all circumstances the defendant can offer any evidence he wants.  Both parties in a criminal case are subject to the standard rules of relevancy and evidence.”  Jacobson, 681 N.W.2d at 406.

            Here, the district court excluded appellant's proposed testimony about an alleged conversation he had with an attorney, where the attorney allegedly advised appellant not to submit to the chemical test.  In Haug, this court stated that “the fact that one may receive what turns out to be bad advice [from counsel] is unfortunate, but does not excuse a refusal to submit to testing.”  473 N.W.2d at 902.  Appellant argues that Haug is distinguishable because the advice the driver in Haug received was “not incorrect, just incomplete.”  This bare assertion is not convincing.  The plain language of the Haug decision—stating that bad legal advice is not a valid excuse for refusing to submit to a chemical test—is applicable here.


Probable Cause vs. Proof Beyond a Reasonable Doubt

Appellant contends that his conviction should be reversed because Minn. Stat. § 169A.20, subd. 2 (2002) (Refusal to submit to chemical test), incorporates the elements of the civil Implied Consent Law, Minn. Stat. § 169A.52 (2002), one of which is that an officer only needs probable cause to believe the detained person had been operating a motor vehicle in order to compel a chemical test.  Appellant argues that incorporating the probable cause element into a criminal statute “amounts to requiring proof [of a lower standard of proof] by the higher standard,” and that this “is not logically possible.” Appellant’s argument fails for two reasons.

1.         Standing

First, the state argues that appellant has no standing to pursue his claim that incorporation of the probable cause element makes Minn. Stat. § 169A.20, subd. 2, unconstitutional because the district court found that appellant was in fact driving the car and not merely that the arresting officer had probable cause to believe he was driving.  See State v. Mireles, 619 N.W.2d 558, 561 (Minn. App. 2000), review denied (Minn. Feb. 15, 2001) (stating that a “person to whom a statute may constitutionally be applied has no standing to challenge that statute on the ground that it might conceivably be applied unconstitutionally to others, in other situations not before the court”).  “Findings of fact, whether based on oral or documentary evidence, shall not be set aside unless clearly erroneous, and due regard shall be given to the opportunity of the trial court to judge the credibility of the witnesses.”  Minn. R. Civ. P. 52.01.  And “[f]indings of fact are clearly erroneous only if the reviewing court is ‘left with the definite and firm conviction that a mistake has been made.’”  Fletcher v. St. Paul Pioneer Press, 589 N.W.2d 96, 101 (Minn. 1999) (citing Gjovik v. Strope, 401 N.W.2d 664, 667 (Minn. 1987)).

Here, there is sufficient evidence to support the trial court’s findings that appellant was in fact “driving a GMC van on County Road 5 near Solway,” and that he “lost control of the van which left the roadway and went into the ditch . . . .”  Appellant was identified by an eyewitness as the driver of the van, he was found with the keys to the van in his possession, and the van was registered to his mother.  Accordingly, we have no need to address the issue of standing.  Appellant’s claim that he was not driving the car fails on its merits.

2.         Constitutionality     

Second, appellant’s claim that Minn. Stat. § 169A.20, subd. 2 is unconstitutional is not persuasive.  The constitutionality of a statute presents a question of law that this court reviews de novo.  State v. Benniefield, 678 N.W.2d 42, 45 (Minn. 2004).  An appellate court presumes the statute is constitutionally valid.  Minn. Stat. § 645.17(3) (2002); Associated Builders & Contractors v. Ventura, 610 N.W.2d 293, 299 (Minn. 2000).  An appellant, in overcoming this presumption, “bears the very heavy burden of demonstrating beyond a reasonable doubt that the statute is unconstitutional.”  State v. Merrill, 450 N.W.2d 318, 321 (Minn. 1990) (citations omitted).   Thus, the court’s power to “declare [a statute] unconstitutional should be exercised with extreme caution and only when absolutely necessary." State v. Fingal, 666 N.W.2d 420, 423 (Minn. App. 2003), review denied (Minn. Oct. 21, 2003).

            Appellant acknowledges in his brief that State v. Olmscheid, 492 N.W.2d 263, 265-66 (Minn. App. 1992), rejected a similar argument to the one he raises here; namely, that incorporation of the probable cause element into Minn. Stat. § 169A.20, subd. 2 violates due process.  And this court rejected another such challenge in 2002.  See State v. Mellett, 642 N.W.2d 779, 786 (Minn. App. 2002) (agreeing with the Olmscheid panel that “we must follow the general rule that the definition of a criminal offense is within the province of the legislature,” and noting that the legislature has not substantively amended the refusal statute since Olmscheid). 

This court recognizes that probable cause to arrest, like articulable suspicion to stop, requires a lesser showing than the trial-standard of “beyond a reasonable doubt” to prove the essential elements of a criminal charge.  But a “good stop” based on articulable suspicion, or a “good arrest” based on probable cause, is just that, a stop and/or an arrest.  Neither changes the final burden of the prosecution to prove the elements of the underlying offense beyond a reasonable doubt at trial to get a criminal conviction.  A “stop” is not “criminal.”  An “arrest” is not “criminal.”  A “conviction” is criminal; the requisite level of proof to get a conviction is and has always remained what appellant argues for, proof beyond a reasonable doubt.  The fact that there is a less-demanding standard for an officer to stop someone suspected of driving under the influence than there is for the same suspect to be later found guilty at trial does not in any way impinge a defendant’s constitutional guarantee of due process.  This has been the norm and the rules of the game for decades.  For these reasons, and in accordance with our prior decisions, we reject appellant’s constitutional challenge to Minn. Stat. § 169A.20, subd. 2. 



1.         Appellant’s Explanation at the Time of Refusal

            Appellant also claims, in his brief to this court, that he “was confused about the necessity of testing,” and that, “[a]lthough the record is somewhat unclear on this point, it also appears that [appellant] received no clarification on that point from law enforcement.”  See State v. Lauzon, 224 N.W.2d 156, 157 (Minn. 1974) (stating that an officer must “attempt to explain to a confused driver that regardless of what his lawyer said, he must permit testing or lose his license”); see also Maietta v. Comm’r of Pub. Safety, 663 N.W.2d 595, 603 (Minn. App. 2003) (Randall, J. dissenting) (stating that refusal to submit to testing is reasonable under Lauzon where (1) confusion is expressed and (2) the expressed confusion is not cleared up).  While appellant argues that he was “confused” because he mistakenly believed that, by denying he was driving the car, he could avoid taking the breath test, appellant’s claim is different from the record that he stipulated to, which states, in relevant part:

[Appellant] acknowledged understanding the advisory.  [Appellant] wished to speak with a lawyer before making a decision on whether to submit to a breath test.  A telephone was provided to [appellant] and he was given an ample amount of time to contact a lawyer of his choosing.  [Appellant] thereafter informed Deputy Walton that he was finished consulting with an attorney.  Deputy Walton then asked [appellant] whether he would submit to a breath test.  [Appellant] responded that he would not submit to this test because the incident had “nothing to do with me.”


The record indicates that appellant understood the advisory and that, rather than confusion regarding the necessity of the breath test, appellant simply asserted that the incident had nothing to do with him.  If appellant believed that by simply denying that he was driving, the whole issue of whether to take a test or refuse would just go away, appellant’s ignorance of the consequences of his actions is not a defense.  State v. King, 257 N.W.2d 693, 697-98 (Minn. 1977).  That is in sharp contrast to his stipulation that he understood the advisory.  Since appellant was given and understood the advisory and was given a chance to talk to an attorney, we cannot find that appellant presented the basis for a “reasonable refusal” based on “reasonable confusion.”  

2.         Notice and Minnesota’s Implied Consent Advisory

Appellant argues further that Minnesota’s Implied Consent Advisory did not provide him with sufficient notice that his refusal to submit to testing could constitute a felony.  This is apparently a constitutional challenge to the advisory, and this court reviews such a challenge de novo.  Benniefield, 678 N.W.2d at 45.  

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. Comm’r 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).  It is not a violation of due process for an officer to fail to advise a driver of all of the possible consequences of refusing a chemical test.  Fehler v. Comm’r of Pub. Safety, 591 N.W.2d 752, 754 (Minn. App. 1999), review denied (Minn. July 28, 1999).  Further, where the consequences of taking a chemical test depend on the application of the implied-consent statute to the particular background of the motorist, this court has found that even inaccurate information regarding those consequences, when given in addition to an accurate advisory, is not misleading.  Id. at 754.

Appellant stipulated that the Implied Consent Advisory was read to him, that the advisory stated that refusal to submit to testing is a crime, and that he was given an opportunity to speak with an attorney before deciding whether to submit to testing.  There is nothing in the record that indicates appellant was misled in any way by the arresting officer.  See McDonnell v. Comm’r of Pub. Safety, 473 N.W.2d 848, 853-54 (Minn. 1991)
(noting that the question of whether suspects were misled by police regarding their statutory obligation to submit to testing is an important factor).  Appellant’s argument that he was not given sufficient warning as to the consequences of his refusal to test fails. 


Ineffective Assistance of Counsel

             Finally, appellant argues that he received ineffective assistance of counsel at the time of his decision not to submit to the test; this resulted in his forfeiting a defense of not driving.  Thus, appellant argues his conviction should be reversed.  Appellant’s argument touches on an ongoing issue in DWI proceedings, i.e., how far does the driver’s right to counsel go, as defined by the supreme court in Friedman v. Comm’r of Pub. Safety, 473 N.W.2d 828, 836-37 (Minn. 1991)?  This court, in a case of first impression, analyzed this question in Maietta, 663 N.W.2d at 600. 

            In Maietta, the court pointed out that, while “the supreme court in Friedman recognized that the request of testing is a ‘critical stage’ of the DWI proceeding, giving the driver a right to counsel, ‘that holding does not make the implied consent proceeding ‘criminal’ in nature.’”  Id. (quoting Davis v. Comm’r of Pub. Safety, 509 N.W.2d 380, 392 (Minn. App. 1993), aff’d, 517 N.W.2d 901, 905 (Minn. 1994)).  We simply note that Friedman gives a limited right to consult an attorney during the investigative stage of a DWI proceeding.  See Friedman, 473 N.W.2d at 835 (stating that the right to counsel in a DWI proceeding is vindicated if the driver is provided with a phone and given reasonable time to contact an attorney, even if the driver is unable to speak with counsel in that
time).  An ineffective assistance of counsel analysis under Strickland v. Washington, 466 U.S. 668 (1984), is applied after a trial on the merits.  There is no Strickland test for the limited right to counsel (in a civil proceeding) set forth by Friedman.