This opinion will be unpublished and

may not be cited except as provided by

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






State of Minnesota,





David P. Burmayer,



Filed April 18, 2006


Hudson, Judge


Hubbard County District Court

File No. TX04002361


Mike Hatch, Attorney General, 1800 Bremer Tower, 445 Minnesota Street, St. Paul, Minnesota 55101-2134; and


Gregory D. Larson, Hubbard County Attorney, Hubbard County Courthouse, 301 Court Avenue, Park Rapids, Minnesota 56470 (for respondent)


Rich Kenly, Kenly Law Offices, P.O. Box 31, Backus, Minnesota 56435 (for appellant)


            Considered and decided by Peterson, Presiding Judge; Klaphake, Judge; and Hudson, Judge.

U N P U B L I S H E D   O P I N I O N


In this appeal, appellant challenges a pretrial order denying his motion to suppress the results of an Intoxilyzer test for use as evidence in his prosecution for driving while impaired.  Because appellant waived his right to appeal this issue when he pleaded guilty, we affirm.



A Hubbard County sheriff’s deputy observed a vehicle proceeding on Highway 200 in the late evening with one headlight burned out and no light over the rear license plate.  The deputy followed the vehicle and saw it make a sharp turn, nearly entering a ditch on the left side of the road.  He then activated his emergency lights and attempted to make a stop.  The vehicle did not immediately stop, but picked up speed.  The deputy activated his siren, and the vehicle stopped.  The deputy identified appellant David Burmayer and had him perform field sobriety tests, which he failed.  A preliminary breath test registered an alcohol concentration of .163, and the deputy arrested appellant for DWI.  A search of the vehicle revealed 11 open and emptied cans of beer, as well as a partial case of beer. 

Burmayer’s statement reflects that after the deputy transported him to the Hubbard County jail, the deputy read him the implied consent advisory and asked if he understood it.  Appellant indicated that he understood and then asked the deputy about the legal consequences of taking the test.  The deputy stated that appellant’s prior convictions were over ten years old, that the results of the preliminary breath test would indicate a charge of fourth-degree DWI, and that test refusal would increase the offense to a gross misdemeanor.  Appellant expressed the fear that he would lose his job whether he took the test or not because he would lose his “CDL” [commercial driver’s license].  He asked if the deputy had his attorney’s phone number.  The deputy replied that he needed to know whether appellant wished to consult an attorney.  When appellant stated that he did, the deputy directed him to the location of the phone books and stated that if he could not reach his attorney, there were other attorneys.  Appellant then stated, “yeah well he’s my he the main man I guess something else he done but you know the whole thing is the bottom line is in your opinion I’m still going to go to court for a [DWI] right [?]”  The deputy replied, “Correct.”  Appellant then gave his consent for the Intoxilyzer test, which showed an alcohol concentration of .15. 

Appellant was charged with fourth-degree DWI under Minn. Stat. §§ 169A.20, subds. 1(5), .27 (2004) as well as an open-bottle violation.  His driver’s license was also revoked under the implied-consent law; however, after a hearing, the district court rescinded the revocation.  Appellant then moved in the DWI proceeding to suppress the results of the Intoxilyzer test, arguing that the deputy did not satisfy his limited right to counsel because the deputy did not provide time to use the phone books or a telephone and misled appellant by indicating that he would go to court regardless of an attorney’s advice.  The district court denied the motion to suppress. 

Appellant pleaded guilty to fourth-degree DWI.  The record does not reflect that appellant expressly retained the right to appeal from the district court’s denial of his motion to suppress.  Appellant was sentenced to 90 days in jail, with a two-year stay of execution except for time served, and two years’ probation, and ordered to pay a $1,000 fine.  This appeal follows. 


A defendant who pleads guilty generally waives all non-jurisdictional defects arising before the entry of the plea.  State v. Ford, 397 N.W.2d 875, 878 (Minn. 1986); State v. Lothenbach, 296 N.W.2d 854, 857 (Minn. 1980).  The Minnesota Supreme Court in Lothenbach stated that

[a] guilty plea represents a break in the chain of events which has preceded it in the criminal process.  When a criminal defendant had solemnly admitted in open court that he is in fact guilty of the offense with which he is charged, he may not thereafter raise independent claims relating to the deprivation of constitutional rights that occurred prior to the entry of the guilty plea.


Lothenbach, 296 N.W.2d at 857 (quoting Tollett v. Henderson, 411 U.S. 258, 267, 93 S. Ct. 1602, 1608 (1973)).  

Lothenbach and Ford presented challenges to pretrial rulings where each defendant had attempted clearly to preserve the pretrial issues for appeal.  See Lothenbach, 296 N.W.2d at 856–57 (noting defense counsel’s statement that record should reflect reason for plea was to conclude case at district court level and appeal denial of suppression motion); Ford, 397 N.W.2d at 878 (stating that similarity to Lothenbach led the supreme court to treat the case as appeal from finding of guilty based on stipulated facts).  Thus, the proper way for appellant to preserve his right to appeal the district court’s pretrial denial of the suppression motion would have been to plead not guilty and submit to a court trial under the procedure in Lothenbach.[1] 

But the record does not reflect that appellant submitted to a Lothenbach stipulation.  The judgment and warrant of commitment states only that he entered a plea of guilty to fourth-degree DWI, and that additional counts were dismissed.  If appellant wished to preserve his right to appeal pretrial rulings under Lothenbach, he had the burden to provide a record so indicating.  See Minn. R. Crim. P. 28.02, subds. 8, 9 (stating that Minnesota Rules of Civil Appellate Procedure govern transcript of proceedings and transmission of transcript and record to the appellate court); Minn. R. Civ. App. P. 110.02, subd. 1 (stating that appellant bears burden of providing transcript of proceedings).  But the record contains no plea agreement or plea-hearing transcript, and appellant’s statement of the case indicated that no transcript was necessary.  Nor did appellant allege that a transcript was unavailable and provide a statement of the proceedings to indicate the nature of his plea.  See Minn. R. Civ. App. P. 110.03 (stating that if no report was made, or if the transcript was unavailable, appellant may prepare a statement of proceedings from best available means).   

            Because appellant failed to provide a transcript indicating he submitted to a court trial under Lothenbach and because appellant’s guilty plea waives his right to appeal pretrial suppression issues, we affirm.


[1] The record establishes that before the suppression hearing in the DWI matter, the district court rescinded appellant’s previous driver’s license revocation under the implied-consent law.  Under Minn. Stat. § 169A.53, subd. 3(g) (2004), the civil implied consent hearing “shall not give rise to an estoppel on any issues arising from the same set of circumstances in any criminal prosecution,” and appellant has not raised the issue of any preclusive effect of the district court’s order rescinding the revocation.