may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (2004).
IN COURT OF APPEALS
Filed March 14, 2006
Reversed and remanded
Concurring specially, Randall, Judge
Hennepin County District Court
File No. 04075384
Peter A. MacMillan, Michele R.
Wallace, Assistant Crystal City Attorneys, MacMillan, Wallace & Athanases,
Paul W. Rogosheske, Thuet, Pugh,
Rogosheske & Atkins, Ltd.,
Considered and decided by Randall, Presiding Judge; Peterson, Judge; and Huspeni, Judge.*
U N P U B L I S H E D O P I N I O N
In this appeal from a pretrial order dismissing a charge of refusal to submit to a chemical test, the state argues that the district court erred in concluding that because the implied-consent advisory administered to respondent did not inform respondent that test refusal is a gross misdemeanor that may result in harsher penalties than test failure, the advisory violated respondent’s due process rights. We reverse and remand.
Respondent Daniel Joseph Melde was arrested for driving while impaired. A police officer administered the implied-consent advisory to respondent. Respondent acknowledges that he understood the advisory and that he was given an opportunity and had enough time to contact an attorney. Instead of contacting an attorney, respondent contacted his high-school hockey coach, who advised him to refuse testing.
refused testing and was charged by complaint with one count of second-degree driving
while impaired (DWI) for refusing to submit to a chemical test, in violation of
Minn. Stat. § 169A.20, subd. 2 (2004), and Minn. Stat. § 169A.25 (2004), and
one count of third-degree DWI for operating a motor vehicle when under the
influence of alcohol, in violation of Minn. Stat. § 169A.20, subd. 1(1) (2004),
The district court concluded that “by
failing to advise arrestees of the enhanced criminality and penalties that
result from refusal,” the implied-consent advisory “violates the due process
requirements of both the
D E C I S I O N
a pretrial prosecution appeal from an order granting a defendant’s motion to
dismiss a criminal charge, this court will only reverse the determination of
the district court if the state demonstrates clearly and unequivocally that the
district court has erred in its judgment and that, unless reversed, the error
will have a critical impact on the outcome of the trial. State v. Poupard, 471 N.W.2d 686, 689 (
argues that although the district court dismissed the test-refusal charge, the
state has not shown critical impact on the outcome of the prosecution because respondent
remains subject to prosecution for the third-degree-DWI charge. But this court concluded in Poupard that the critical-impact
requirement was met when one of two charges was dismissed.
The state argues that the district court erred in its judgment when it concluded that the implied-consent advisory violates due process. We agree. This court held in State v. Myers, ___ N.W.2d ___ (Minn. App. Mar. 14, 2005), which is being released concurrently with this opinion, that when the implied-consent advisory is administered to a person under Minn. Stat. § 169A.51, subd. 2 (2004), failing to inform the person that test refusal is a gross misdemeanor that may result in harsher penalties than a test failure does not violate the person’s due-process rights.
Reversed and remanded.
RANDALL, Judge (concurring specially).
I concur in the result.
* Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to Minn. Const. art. VI, § 10.