This opinion will be unpublished and

may not be cited except as provided by

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








Martin Norman Winfrey, petitioner,


Commissioner of Public Safety,



Filed April 12, 2005


Wright, Judge



Goodhue County District Court

File No. C7-04-284



Christopher K. Wachtler, Collins, Buckley, Sauntry & Haugh, P.L.L.P., W-1100 First National Bank Building, 332 Minnesota Street, St. Paul, MN  55101 (for appellant)


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



            Considered and decided by Minge, Presiding Judge; Randall, Judge; and Wright, Judge.


U N P U B L I S H E D  O P I N I O N




Appellant challenges the revocation of his driver’s license, arguing that (1) the district court erred in finding that appellant was unconscious and incapable of withdrawing his consent to submit to an alcohol-concentration test; and (2) the officer violated appellant’s constitutional right to due process by actively misleading appellant about his obligation to submit to testing.  We affirm.



At approximately 3:30 a.m. on December 21, 2003, Deputy Dave Windels of the Goodhue County Sheriff’s Department discovered a one-vehicle accident in which a truck, driven by appellant Martin Winfrey, had slid into a ditch and struck a tree.  Deputy Windels arranged for Winfrey to receive emergency transportation to a local hospital.

Shortly thereafter, Officer Cory Rasmussen of the Red Wing Police Department examined the scene of the accident and proceeded to the hospital to attempt to determine Winfrey’s alcohol concentration.  Winfrey had arrived at the hospital before Officer Rasmussen.  Upon Officer Rasmussen’s arrival, he observed Winfrey lying on a gurney in the emergency room.  Winfrey did not respond to Officer Rasmussen’s questions.  At approximately 4:15 a.m., Officer Rasmussen read the standard implied-consent advisory to Winfrey, including the following optional provision:  “Because I also have probable cause to believe you have violated the criminal vehicular homicide or injury laws, a test will be taken with or without your consent.”  Officer Rasmussen then directed that hospital staff obtain a blood sample for testing.  Because Winfrey struggled when hospital staff attempted to draw blood, several attempts were required before a sample was successfully drawn at 5:50 a.m.

Officer Rasmussen testified that he was continuously present with Winfrey from the time he joined Winfrey in the emergency room until the blood sample was drawn.  According to Officer Rasmussen, Winfrey appeared unconscious but had seizure responses during attempts to draw blood.  After Officer Rasmussen’s departure, Winfrey remained in the emergency room and received additional treatment and diagnostic testing that required blood to be drawn. 

Lori Books, a nurse on duty that morning, testified that Winfrey responded to questions about pain and to instructions to move.  After Books referred to Winfrey several times as “Marty,” Winfrey asked Books to call him “Martin.”  Books did not recollect whether Officer Rasmussen was present during any of these exchanges.  Books assisted with at least one attempt to draw blood.  Based on her observations, she believed that Winfrey was conscious during these attempts.  Aside from noting that her shift was completed at 7:00 a.m., Books did not indicate when any of these events occurred.

            Respondent Commissioner of Public Safety revoked Winfrey’s driver’s license based on the alcohol-concentration results of the blood test.  Winfrey petitioned for judicial review.  In addition to the testimony of Officer Rasmussen and Books, the district court received into evidence medical records pertaining to Winfrey’s condition and treatment at the hospital.

In its order dated June 22, 2004, the district court sustained the revocation of Winfrey’s driver’s license.  The district court found that Officer Rasmussen did not observe Winfrey’s oral communications with other hospital staff and that Winfrey did not attempt to communicate with Officer Rasmussen.  Based on Winfrey’s lack of response to the implied-consent advisory administered by Officer Rasmussen, the district court found that Winfrey did not hear the implied-consent advisory and was not misled by the instructions.  Because Officer Rasmussen “could have reasonably inferred that [Winfrey] was unconscious” and incapable of withdrawing his consent and refusing the test, the district court concluded that it was proper for Officer Rasmussen to direct the hospital staff to administer a blood test.  This appeal followed.





            Winfrey challenges the revocation of his driver’s license, arguing that the record does not support the district court’s finding that he was unconscious at the time Officer Rasmussen read the implied-consent advisory and was incapable of withdrawing his consent to a blood test.  We review a district court’s findings for clear error, viewing the record in the light most favorable to the findings.  Vangsness v. Vangsness, 607 N.W.2d 468, 472 (Minn. App. 2000).  Because the district court has the opportunity to observe the demeanor of witnesses, we accord deference to its determination of witness credibility.  Roettger v. Comm’r of Pub. Safety, 633 N.W.2d 70, 73 (Minn. App. 2001).  When we review a finding of incapacity in an implied-consent proceeding, the evidence must support a “‘firm conviction’ that the driver was incapable of making a reasoned refusal.”  Heuton v. Comm’r of Pub. Safety, 541 N.W.2d 361, 363 (Minn. App. 1995) (quoting Thornton v. Comm’r of Pub. Safety, 384 N.W.2d 606, 608 (Minn. App. 1986)).

            When a driver operates a motor vehicle in Minnesota, the driver is deemed to consent to chemical testing of the driver’s blood, breath, or urine under certain circumstances.  Minn. Stat. § 169A.51, subd. 1(a) (2002).  A peace officer may require a driver to submit to testing to determine the driver’s alcohol concentration when the officer has probable cause to believe that the driver was driving while impaired by alcohol.  Id., subd. 1(b) (2002).  Under most circumstances, before an officer may request that a driver submit to such testing, the officer will read an implied-consent advisory and provide the driver an opportunity to withdraw consent and refuse testing.  Id., subd. 2 (2002).  But when a driver is “unconscious or . . .  otherwise in a condition rendering the person incapable of refusal,” the driver’s consent is not withdrawn and the officer may proceed with testing.  Id., subd. 6 (2002); State, Dep’t of Pub. Safety v. Wiehle, 287 N.W.2d 416, 419 (Minn. 1979).

            When a driver is hospitalized and the driver’s injuries are serious enough to prevent an officer from questioning the driver, the officer may proceed with implied-consent testing without the driver’s consent.  Douglas v. Comm’r of Pub. Safety, 385 N.W.2d 850, 853-54 (Minn. App. 1986), review denied (Minn. June 19, 1986).  Thus, the officer must make a factual determination, based on the totality of the circumstances, as to whether the driver is capable of making a rational decision whether to refuse or consent to testing.  Villeneuve v. Comm’r of Pub. Safety, 417 N.W.2d 304, 306 (Minn. App. 1988).  This determination must be made from the facts and conditions apparent to the officer when the implied-consent advisory is administered. 307-08.  When an officer requests testing of an unconscious driver pursuant to the implied-consent law, the officer is entitled to rely on information known to the officer at the time of the advisory without a challenge to such reliance based on information gleaned after the fact.  Heuton, 541 N.W.2d at 365; Villeneuve, 417 N.W.2d at 308.  To determine whether a driver is responsive, the officer may inquire of medical personnel as to the driver’s condition, but the officer is not required to do so.  See Poppenhagen v. Comm’r of Pub. Safety, 400 N.W.2d 799, 800, 802 (Minn. App. 1987) (observing that officer consulted with medical personnel to determine whether driver was capable of understanding implied-consent advisory). 

The facts and conditions apparent to Officer Rasmussen are critical to our determination.  Officer Rasmussen testified that he continuously observed Winfrey from the reading of the implied-consent advisory until the blood draw.  According to Officer Rasmussen, Winfrey appeared to be unconscious and did not make any attempt at communication in response to the implied-consent advisory. 

Our careful review of the testimonial and documentary evidence establishes that nothing in the record directly refutes Officer Rasmussen’s testimony.  There is no evidence that Books was present when the implied-consent advisory was read.  Books did not testify that Officer Rasmussen was present when Winfrey was responsive and speaking to her.  Indeed, she had no recollection of whether Officer Rasmussen was present at the time, and she did not testify about whether she observed Officer Rasmussen administer the implied-consent advisory.  Thus, evidence of Winfrey’s unresponsiveness to Officer Rasmussen is unrefuted.  The medical records in evidence refer to a timeframe extending from Winfrey’s admission at 4:00 a.m. until his release at 10:55 a.m.  While certain references identify Winfrey’s condition at a particular time, these references do not assist in clarifying the critical facts at issue here.  For example, assuming that Winfrey spoke to Books or other hospital staff, nothing in the record indicates precisely when these communications took place.  Because Officer Rasmussen did not arrive until some point after Winfrey was admitted to the hospital, a view of the evidence in the light most favorable to the district court’s findings supports the inference that Winfrey communicated with hospital staff before Officer Rasmussen arrived.  Furthermore, Books did not have Winfrey under continuous observation and did not recollect when Officer Rasmussen was present.  Thus, the record does not compel a conclusion that the evidence presented in the testimony of Books and Officer Rasmussen is inconsistent.

Viewing the record in the light most favorable to the district court’s findings, with due deference to its evaluation of the witnesses’ credibility, the evidence supports a conclusion that Winfrey was unconscious and incapable of withdrawing his consent.  Accordingly, the district court did not clearly err in deciding that Officer Rasmussen reasonably concluded that Winfrey was incapable of refusal.


            Winfrey next asserts that, because Officer Rasmussen actively misled him about the obligation to undergo implied-consent testing, the testing procedure violated constitutional guarantees of due process.[1]  The Commissioner concedes that Officer Rasmussen erroneously instructed Winfrey that, because Winfrey committed a criminal vehicular homicide or injury offense, he was subject to testing without his consent.[2]  Indeed, because Winfrey was the only person injured, the nature of the accident did not provide a factual basis for reading this paragraph of the implied-consent advisory.

            When an officer reads an implied-consent advisory, the officer is required to state the driver’s testing obligation accurately.  If an officer actively misleads a driver about the nature of the obligation, the implied-consent procedure violates the driver’s right to due process.  McDonnell v. Comm’r of Pub. Safety, 473 N.W.2d 848, 853-54 (Minn. 1991).  A misleading statement of a driver’s testing obligation will establish a violation of due process, even if the driver neither relies on the statement nor suffers prejudice.  See, e.g., State v. Thesing, 485 N.W.2d 734, 735-36 (Minn. App. 1992); Olinger v. Comm’r of Pub. Safety, 478 N.W.2d 806, 807-08 (Minn. App. 1991).

            Winfrey argues that, because Officer Rasmussen did not have probable cause for a criminal vehicular homicide or injury offense, Officer Rasmussen actively misled Winfrey about his obligation to submit to testing.  When a violation of due process is based on a misstatement of the implied-consent obligation, the circumstances uniformly involve a driver who was cognizant of the officer’s statements.  See, e.g., Thesing, 485 N.W.2d at 735; State v. Nelson, 479 N.W.2d 436, 437 (Minn. App. 1992).  Minnesota courts have consistently rejected challenges to the implied-consent advisory when implied-consent testing proceeds due to the unconsciousness of the driver.  See, e.g., Wiehle, 287 N.W.2d at 417-18; State v. Stransky, 384 N.W.2d 612, 614 (Minn. App. 1986); see also Stiles v. Comm’r of Pub. Safety, 369 N.W.2d 347, 352 (Minn. App. 1985) (not inquiring into advisory when driver was disoriented and could not understand advisory).

Officer Rasmussen erroneously stated that there was probable cause for a criminal vehicular homicide or injury offense.  But absent a determination that Winfrey was conscious, there is no basis to conclude that Winfrey was actively misled by Officer Rasmussen’s error.  Thus, the implied-consent procedure did not violate Winfrey’s constitutional right to due process.


[1] The Commissioner challenges this argument procedurally, contending that this issue was not properly raised before the district court.  The record establishes that, although this issue was not addressed at the hearing, Winfrey raised the issue in a memorandum that was offered in lieu of closing argument.  The district court also considered the issue, concluding that, because Winfrey did not hear the implied-consent advisory, he was not misled by it.  Because this issue was decided on its merits by the district court, it is preserved for consideration on appeal.  See Weierke v. Comm’r of Pub. Safety, 578 N.W.2d 815, 816 (Minn. App. 1998).

[2] The offenses of criminal vehicular homicide and injury require that a driver cause death or harm to another.  Minn. Stat. § 609.21 (2004).  Because Winfrey was the only person injured as a result of the accident, there was not probable cause to proceed with this offense.