This opinion will be unpublished and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
Mark Allan Plocher, petitioner,
Commissioner of Public Safety,
Filed January 17, 2006
Carver County District Court
File No. CV-03-633
Francis J. Eggert,
Mike Hatch, Attorney General, Sean R. McCarthy, Assistant
Attorney General, 1800
Considered and decided by Wright, Presiding Judge; Dietzen, Judge; and Crippen, Judge.*
Appellant challenges the district court order sustaining the revocation of appellant’s driver’s license under Minn. Stat. §§ 169A.51-.53 (2002), the implied consent law, arguing that: (1) the officer lacked reasonable articulable suspicion to expand the investigation beyond the initial traffic stop; (2) the officer lacked probable cause to arrest appellant and require that he take a breath and chemical test pursuant to the implied consent law; (3) the district court abused its discretion in its evidentiary rulings; and (4) the implied consent advisory is unconstitutionally vague, and violates due process and equal protection. Because we conclude that the district court properly applied the law and did not abuse its discretion in its evidentiary rulings; and that the implied consent advisory is constitutional, we affirm.
During an evening in April 2003, Deputy Glaser stopped appellant Mark Allen Plocher’s vehicle because of a nonfunctioning headlight. As Glaser approached the vehicle, appellant made a number of furtive, quick movements inside the vehicle. When Glaser asked appellant for identification, appellant immediately began rummaging around the vehicle, which was cluttered with garbage and other items. Because of the cluttered condition of the vehicle, Glaser could not see what appellant was attempting to reach or conceal. Glaser repeatedly requested that appellant cease rummaging, but appellant refused and continued reaching throughout the vehicle. As a result, Glaser became concerned for his safety, and suspected that appellant was attempting to locate a concealed weapon or contraband.
Glaser then asked appellant if he possessed any weapons or contraband. Appellant, who was nervous and shaky, indicated that he had thrown a “marijuana roach” out of the vehicle window prior to being stopped by the officer, but later told Glaser that the marijuana roach may be in the vehicle. As a result, Glaser suspected that appellant possessed marijuana or other contraband. While speaking with appellant, Glaser detected a faint odor of alcohol on appellant’s breath, andnoticed that appellant’s eyes were bloodshot and his speech was mumbled and disorderly. When asked if he had consumed alcohol that evening, appellant answered that he had approximately three beers an hour and a half prior to the stop.
Because Glaser suspected appellant of driving under the influence of alcohol or controlled substances, he ordered appellant to exit the vehicle. Appellant refused the request three times and demanded that he be issued a “fix it” citation or be allowed to leave. Shortly thereafter, another officer arrived to assist Glaser. Appellant then stated that he had the right to leave, but Glaser responded that he was not free to leave, and that if he left the scene, he would be charged with fleeing a police officer. Appellant drove off at a high rate of speed, and the officers initiated pursuit. After traveling a mile, appellant stopped the vehicle. Subsequently, appellant was arrested.
Glaser then read the implied consent advisory to appellant, including the section stating, “Minnesota law requires you to take a test to determine (a) if you are under the influence of alcohol, and (b) if you are under the influence of hazardous or controlled substances or to determine the presence of a controlled substance listed in schedule I or II, other than marijuana or tetrahydrocannabinols.” Appellant agreed to take an Intoxilyzer breath test, which indicated no alcohol in appellant’s breath. Glaser then sought the opinion of a Drug Recognition Evaluator (DRE), but the DRE’s tests were inconclusive as to whether appellant was impaired.
Glaser then asked appellant to submit to a urine test. After contacting an attorney, appellant submitted to a urine test four hours after the initial traffic stop. The urine testing kit was supplied by the Bureau of Criminal Apprehension (BCA) and the urine sample was tested by the BCA. The urine test was positive for a controlled substance, i.e., cocaine.
Subsequently, appellant’s driver’s license was revoked by the Commissioner of Public Safety pursuant to Minn. Stat. § 169A.51-.53 (2002), the implied consent law, because of the positive test for a controlled substance. Appellant challenged the license revocation in district court.
At the hearing, three witnesses testified, including Glaser and appellant. Appellant testified that his nervousness was due to his efforts to hurry home, retrieve his wallet, and return to the grocery store to purchase groceries. Appellant admitted that he told Glaser that he had thrown a marijuana cigarette from the vehicle window. He stated that his blood-shot eyes were the result of sheet rocking without goggles during his construction work; that he told the officer that he consumed “a beer and a half about three hours” prior to the stop; and that he fled because he feared that the officers intended to break a window of his vehicle and mace him.
Appellant also testified that the seal of the urine kit was broken before it was used. Appellant also attempted to testify regarding a prior “false positive” urine test, but the district court sustained respondent’s relevancy objection. In an offer of proof, appellant offered testimony and a physician’s letter indicating that, in 2002, appellant tested positive for cocaine in a urine test while a contemporaneous blood test was negative for cocaine.
Following trial, the district court sustained the commissioner’s revocation of appellant’s license. This appeal follows.
D E C I S I O N
Appellant raises four issues on appeal. First, appellant argues that the deputy officer lacked any reasonable articulable suspicion to expand the initial traffic stop. Specifically, appellant contends that the officer had no right to go beyond issuing appellant a “fix-it ticket” for the nonfunctioning headlight. Respondent contends that the officer’s observations at the time of the initial stop gave rise to articulable suspicion of criminal activity justifying expanded questioning regarding consumption of alcohol and/or drugs.
court reviews the legality of a limited investigatory stop and questions of
reasonable suspicion de novo. State v. Munson, 594 N.W.2d 128, 135 (
officer’s questions should be limited to the purpose of the traffic stop. Wiegand,
645 N.W.2d at 136. If the responses or
other circumstances give rise to a reasonable articulable suspicion of
additional criminal activity within the time necessary to resolve the original
purpose of the stop, an officer may broaden his inquiries and satisfy those
suspicions. See id. Reasonable suspicion
is determined from the totality of the circumstances. State
v. Syhavong, 661 N.W.2d 278, 281 (
vehicle was stopped for a nonfunctioning headlight, which is a violation of
traffic laws. See
however, that these circumstances are insufficient to give rise to reasonable
articulable suspicion given the Minnesota Supreme Court’s recent decision in State v. Burbach, 706 N.W.2d 484 (Minn.
2005). In Burbach, the supreme court held that an officer’s detection of the
odor of alcohol coming from an adult passenger and observation of the driver’s
nervous behavior during an investigatory traffic stop, without additional signs
of impairment, is insufficient to establish reasonable articulable suspicion of
drug or alcohol possession to permit the expansion of the stop.
Under the totality of the circumstances, Glaser had reasonable articulable suspicion that appellant was in possession of weapons or contraband justifying the expanded duration and scope of the initial traffic stop and the broader inquiries about consumption of illegal substances.
Second, appellant argues that Glaser lacked probable cause to believe that he was under the influence of alcohol or a controlled substance to justify placing him under arrest for DWI and requesting a chemical test pursuant to the implied consent law. Specifically, appellant argues that probable cause requires a DRE’s conclusive determination that appellant is under the influence of a controlled substance. Respondent contends the totality of circumstances, when viewed by a trained police officer, provided probable cause.
determination of probable cause is a mixed question of fact and of law. Clow v. Comm’r of Pub. Safety, 362
N.W.2d 360, 363 (Minn. App. 1985), review denied (Minn. Apr. 26,
1985). After the facts are determined, this court must apply the law to determine if
probable cause existed.
A peace officer
may lawfully arrest a person for a violation of Minn. Stat. § 169A.20
(2002) (driving while impaired) upon probable cause.
In DWI law, “[a]n
officer needs only one objective indication of intoxication to constitute
probable cause to believe a person is under the influence.” State
v. Kier, 678 N.W.2d 672, 678 (
Here, appellant exhibited
many indications of intoxication.
Appellant was immediately uncooperative by refusing Glaser’s repeated
requests that he cease rummaging through the vehicle. Appellant was nervous, shaky, fidgeting, had
blood-shot eyes, and Glaser smelled a faint odor of alcohol on appellant’s
breath. Finally, appellant fled the
scene at a high rate of speed despite being informed by the officer that he was
not free to leave. Appellant’s argument
that probable cause requires a conclusive determination by a DRE that a suspect
is impaired is unsupported by case law.
Only one objective indication of intoxication is necessary to constitute
probable cause to believe a person is under the influence, and probable cause
is not required to be supported by an expert opinion. See Kier,
678 N.W.2d at 678 (one indication); State
v. Hegstrom, 543 N.W.2d 698, 701 (
Appellant further argues
that he had innocent explanations for the officer’s observations. But “[t]he fact that there may have been an
innocent explanation for [appellant’s] conduct does not demonstrate that the
officers could not reasonably believe that appellant had committed a
crime.” State v. Hawkins, 622 N.W.2d 576, 580 (
Under the circumstances, the officer’s observations of indicia of intoxication were sufficient to establish probable cause to justify placing appellant under arrest for DWI and requesting breath and chemical tests pursuant to the implied consent law.
appellant argues that the district court abused its discretion in two
evidentiary rulings regarding chemical test results. Absent an erroneous interpretation of the
law, the question of whether to admit or exclude evidence lies within the discretion
of the trial court. Kroning v. State
Farm Auto. Ins. Co., 567 N.W.2d
42, 45-46 (
A. Admission of Urine Test Results
First, appellant argues that the district court abused its discretion in admitting the results of the urine test because the test was unreliable in two ways: (1) it was taken more than two hours after the traffic stop; and (2) the seal of the test kit was broken when first observed by appellant. Respondent contends that appellant failed to rebut the Commissioner’s prima facie case of a reliable chemical test.
party offering the results of a chemical test into evidence has the burden of
establishing a prima facie case that the test is reliable. Genung
v. Comm’r of Pub. Safety, 589 N.W.2d 311, 313 (
Glaser administered a chemical test using a sealed BCA urine collection kit,
which provides “a sufficient indicium of reliability to establish the prima
facie admissibility of the test results.”
State v. Dille, 258 N.W.2d
565, 568 (
Because respondent established a prima facie case of admissibility regarding the test results, and appellant failed to meet his burden of production, the district court did not abuse its discretion in admitting the test results.
B. Exclusion of “False Positive” Urine Test Results From 2002
Appellant also argues that the district court abused its discretion by excluding appellant’s proposed evidence concerning a previous “false positive” drug test. Appellant contends that this evidence is relevant to demonstrate that his body is capable of producing a “false positive” when tested for controlled substances using urine. Respondent contends that the district court was correct in refusing to admit the evidence based on irrelevancy.
is evidence that has any tendency to make the existence of any fact of
consequence to the determination of the action more probable or less probable
than it would be without the evidence.
Here, appellant sought to introduce evidence that in July 2002, he tested positive on a urine test for cocaine while an accompanying blood test administered by a physician was negative for cocaine. This evidence makes the reliability of the 2002 urine test less probable; but it fails to speak to the reliability of the 2003 urine test results. Evidence of a prior “false positive” result creates the possibility of a similar false positive in this case, which is insufficient to defeat the prima facie reliability of the urine test results. In short, appellant has failed to produce any credible evidence that challenges the methodology or reliability of the test results that require exclusions of the evidence. Consequently, the district court did not abuse its discretion in admitting the results of the urine test.
Fourth, appellant argues that the language in the implied consent advisory referring to “schedule I or II controlled substances” is unconstitutionally vague, and violates due process and equal protection. Respondent contends that appellant waived his constitutional claims by failing to adequately develop these arguments.
This court reviews
a constitutional challenge
to a statute de novo. In re Kindschy, 634 N.W.2d 723, 729
(Minn. App. 2001), review denied (
declines to reach issues in absence of adequate briefing. State
v. Dep’t of Labor & Indus. v. Wintz Parcel Drivers, Inc., 558 N.W.2d
480, 480 (
Here, appellant bases his constitutional arguments on the following portion of the Implied Consent Advisory: “Minnesota law requires you to take a test to determine: if you are under the influence of hazardous or controlled substances or to determine the presence of a controlled substance listed in schedule I or II, other than marijuana or tetrahydrocannabinols.”
Appellant’s only argument is that, because the “average citizen” would not be able to describe a schedule I or schedule II controlled substance, the implied consent advisory statute is unconstitutionally vague and violates due process and equal protection. But appellant’s brief contains no citation or legal analysis, failing to address even the basic elements of vagueness, due process, or equal protection challenges. See Lundberg v. Jeep Corp., 582 N.W.2d 268, 271 (Minn. App. 1998) (when fundamental right or suspect class not involved, challenging party must show persons involved are similarly situated and no rational basis for statute that creates disparate treatment); City of Mankato v. Fetchenhier, 363 N.W.2d 76, 78 (Minn. App. 1985) (vagueness challenge addresses whether ordinary people can understand what conduct is prohibited and in a manner that does not encourage arbitrary and discriminatory enforcement); In re O’Keefe, 354 N.W.2d 531, 534 (Minn. App. 1984) (to prevail on due process claim, appellant must show a protected right which was impaired by statute). Because appellant did not adequately brief his constitutional arguments, this court need not address them.
appellant’s arguments fail as a matter of law.
A void-for-vagueness challenge requires that appellant demonstrate that
the statute lacked specificity as to his own behavior rather than some
hypothetical situation involving an “average citizen.” Ruzic
v. Comm’r of Pub. Safety, 455 N.W.2d 89, 92 (
* Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to Minn. Const. art. VI, § 10.
 In Fedziuk, the Minnesota Supreme Court held that the 2003 amendment to the Implied Consent Law, which removed the requirement for prompt judicial review of a prehearing revocation, violated due process. But the supreme court severed the 2003 amendment and revived the previous version, which was previously upheld against a due process challenge.