This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. ß 480A.08, subd. 3 (2004).
IN COURT OF APPEALS
Christopher M. Athey,
Christopher M. Athey, petitioner,
Commissioner of Public Safety,
Filed September 20, 2005
Affirmed; motion denied
Randall, Judge, concurring specially
Stevens County District Court
File Nos. C6-04-135 & K3-04-108
Mike Hatch, Attorney General, Willow Najjar, Assistant Attorney General, 1800 Bremer Tower, 445 Minnesota Street, St. Paul, MN† 55101-2134; and
Bruce W. Klopfleisch, Assistant Donnelly City Attorney, 109 E. 6th Street, P.O. Box 66, Morris, MN† 56267 (for respondent)
Derek A. Trosvig, Swenson Lervick Syverson Anderson Trosvig Jacobson, P.A., 710 Broadway, P.O. Box 787, Alexandria, MN† 56308 (for appellant)
††††††††††† Considered and decided by Randall, Presiding Judge, Klaphake, Judge, and Willis, Judge.
U N P U B L I S H E D†† O P I N I O N
††††††††††† Appellant Christopher M. Athey was charged with refusal to submit to chemical testing in violation of Minn. Stat. ßß 169A.20, subd. 2; .25, subd. 1(b) (2004), and his driverís license was revoked by respondent Commissioner of Public Safety.† Appellant moved to dismiss the test refusal charge and to reinstate his driving privileges in a combined omnibus/implied consent hearing. †After the district court denied his motions, appellant agreed to a Lothenbach proceeding and was convicted of second-degree test refusal.† Appellant challenges his conviction and the district courtís order sustaining his license revocation.
††††††††††† Because the district court did not err by concluding that (1) appellant refused chemical testing; (2) his refusal was not reasonable; and (3) his right to counsel was vindicated, we affirm.†
D E C I S I O N
We review the district courtís findings of
fact for clear error and its legal determinations de novo.†
Appellant argues that he did not refuse to submit to chemical testing because (1) he agreed to be tested but insisted on a blood test, and (2) after learning that his license would be revoked for a year for refusing a breath test, he immediately changed his mind and consented to a breath test.† ††
††††††††††† A refusal to submit to testing may
be found where a driver imposes conditions upon the consent to a test.†
A driver who initially refuses testing has
no absolute right to retract his or her refusal by a later affirmative response
to testing. †
appellant argues, relying on
the implied consent law, a driver may present as an affirmative defense that a
refusal was reasonable.† Minn. Stat. ß
169A.53, subd. 3(c) (2004).† The affirmative
defense of reasonable refusal places the burden upon the driver to prove
reasonableness by a preponderance of the evidence.† Winder
some circumstances, a driverís confusion about the law may render the refusal
to take the breath test reasonable.† Sigfrinius v.
Appellant argues that his refusal was reasonable because he believed he had a legal right to choose a blood test and because he believed that his use of an asthma inhaler would affect the results of a breath test.† The district court found that (1) police informed appellant that he would be offered only a breath test and that failure to take the breath test would be considered a refusal; (2) police read appellant the implied consent advisory that indicated that a refusal was a crime; and (3) appellant failed to mention his concerns about the effect of his inhaler on the test results.† These findings are supported by the record and are not clearly erroneous.† Based on these findings, the district court correctly concluded that appellant was not confused as to his rights or the consequences of refusal, and thus his refusal to submit to testing was not reasonable.†
driver arrested for DWI has a limited right to consult with counsel before
deciding whether to comply with the statutorily-mandated chemical testing.† State
v. Slette, 585 N.W.2d 407, 409 (
the limited right to counsel is vindicated if the DWI arrestee is given access
to a telephone and time to consult with counsel.† Slette,
585 N.W.2d at 409.† But when the arrestee
demands an attorney while in the squad car or holding room, or refuses to
respond, or makes a request that is less than clear and unequivocal, the right
to counsel may not be violated by failure to provide access to an
attorney.† See, e.g., Collins, 655 N.W.2d at 656-58 (no right to counsel for
PBT or in squad car enroute to jail; right to counsel not violated when
driverís belligerent and obstreperous behavior frustrated implied consent
process); Busch v. Commír of Pub. Safety,
614 N.W.2d 256, 259 (
Appellantís reliance on Slette, is misplaced. †In Slette, 585 N.W.2dat 409-10, the officer actively tried to talk the driver out of contacting an attorney.† Based on the record before us, appellant did no more than mention twice in passing that he should talk to an attorney; both times, the officer agreed, but appellant immediately abandoned the request and continued to argue with the officer. †Ultimately, the district court concluded that appellant abandoned any desire to contact an attorney.† The district courtís findings are supported by the record and are not clearly erroneous.† Accordingly, the district court did not err by concluding that appellantís right to counsel was not violated.
commissioner moved to dismiss the implied consent appeal because appellant
failed to post a cost bond or cash deposit as required by Minn. R. Civ. App. P.
107.† While implied consent matters are
included in the ambit of this rule, no cost bond is required for a criminal
appeal.† Minn. R. Crim. P. 28.02, subd.
††††††††††† Affirmed; motion denied.
††††††††††† I concur in the result.