This opinion will
be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (2004).
STATE OF MINNESOTA
IN COURT OF APPEALS
State of Minnesota,
Justin K. Norgaard,
Filed May 30, 2006
Concurring specially, Klaphake, Judge
Hennepin County District Court
File No. 05021836
Mike Hatch, Attorney General,
1800 Bremer Tower,
445 Minnesota Street,
St. Paul, Minnesota 55101-2134; and
Jay M. Heffern, Minneapolis City
Attorney, Eileen J. Strejc, Assistant City Attorney, 333 South Seventh Street,
Suite 300, Minneapolis, Minnesota 55402 (for appellant)
Jeffrey S. Sheridan, Strandemo,
Sheridan & Dulas P.A., 320 Eagandale Office Center, 1380 Corporate Center
Curve, Eagan, Minnesota 55121 (for respondent)
and decided by Hudson, Presiding Judge; Klaphake, Judge; and Crippen, 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 granting respondent’s motion to dismiss a gross-misdemeanor test-refusal
count, the state argues that the district court erred in ruling that the Minnesota
Motor Vehicle Implied Consent Advisory violates procedural due process. Because the advisory clearly informs the
driver that refusal to test is a crime, and it does not actively mislead
the driver as to his legal obligation to take the test, the advisory does not violate due process. We reverse and remand.
At approximately 2 a.m. on April 9,
2005, State Trooper Andrew DeRungs was standing on the right shoulder of southbound
I-35W just north of the 46th
Street exit ramp, issuing a citation during a
traffic stop. While he was issuing the
citation, a red Tahoe traveling southbound in the exit-only lane drove near the
fog line and almost struck Trooper DeRungs.
Trooper DeRungs returned to his squad car and pursued the vehicle. The Tahoe changed lanes from the exit-only
lane to the right-hand lane of I-35W without signaling a lane change. Trooper DeRungs caught up with the vehicle,
which pulled over just north of the 60th
As Trooper DeRungs approached the vehicle, the driver, Justin Norgaard, got
out of the vehicle and fell to the pavement.
While talking with Norgaard, the trooper detected a strong odor of
alcohol and observed that Norgaard’s eyes were watery and bloodshot. He also noticed that Norgaard was slurring
his speech. Trooper DeRungs asked
Norgaard to take a preliminary breath test; Norgaard refused. Trooper DeRungs arrested Norgaard and
transported him to the police department’s chemical-testing unit, where
Norgaard was read the Minnesota Motor Vehicle Implied Consent Advisory. Norgaard was given time to contact an
attorney, but he was unable to do so.
Norgaard declined all requests to submit to testing on the basis that he
could not reach his attorney. Norgaard
was charged with third-degree refusal to submit to chemical testing, in
violation of Minn. Stat. §§ 169A.20, subd. 2, 169A.26, subds. 1, 2 (2004);
and fourth-degree driving while under the influence, in violation of Minn.
Stat. §§ 169A.20, subd. 1(1), 169A.27, subds. 1, 2 (2004).
In response to Norgaard’s pretrial
motion to dismiss, the district court found that Trooper DeRungs had (1) a
reasonable, articulable suspicion for stopping Norgaard and (2) sufficient
probable cause to arrest Norgaard for driving while under the influence. The district court, however, dismissed the
gross-misdemeanor count of third-degree refusal to submit to a chemical test,
concluding the statutes were unconstitutionally violative of procedural due
process. The district court incorporated
two other district court opinions concluding that because the advisory in its
current form does not adequately warn drivers that refusal to submit to testing
could result in a harsher penalty than consenting to the test, it is
unconstitutional. The state appeals.
D E C I S I O N
state argues that the district court erred in ruling that the Minnesota Motor
Vehicle Implied Consent Advisory violates procedural due process by failing to
notify a defendant that refusal to submit to testing is a gross misdemeanor. We agree.
argues that there are no legitimate reasons for not telling a driver that
refusal might result in a more serious charge than failing the test. Although respondent’s argument has merit, we
are not persuaded that the present implied-consent advisory violates due
process. This court recently released
opinions in companion cases concluding that a driver’s due-process rights are
not violated when a police officer gives the driver a standard implied-consent
advisory but fails to inform the driver that refusal to submit to chemical
testing for intoxication is a gross misdemeanor that may result in harsher
penalties than test failure. State v. Myers, 711 N.W.2d 113, 119 (Minn. App. 2006), review
May 16, 2006); State v. Melde, No.
A05-1553 (Minn. Mar. 14, 2006), review granted (Minn. May 16, 2006). The issue on appeal here is indistinguishable
from the issue in Myers and Melde, and we decide this case in a
consistent manner. Because the advisory
informs the driver that refusal to test is a crime and does not actively
mislead the driver as to his legal obligations to take the test, the district
court erred in its judgment that the advisory violates a driver’s due-process
Reversed and remanded.
KLAPHAKE, Judge (concurring specially)
While I concur in the result because
it comports with State v. Myers, 711
N.W.2d 113 (Minn. App. 2006), review
granted (Minn. May 16, 2006), and its flourishing progeny, I write
separately to note my concerns with the constitutionality of the implied
consent advisory as it relates to informing a driver of the enhanced criminal
penalties that result from refusal to submit to chemical testing. The current state of the law with regard to
the implied consent advisory is dangerously close to vanquishing a valid
constitutional liberty interest.
States and Minnesota
constitutions prohibit deprivation of “life, liberty or property without due
process of law.” U.S. Const., amend. XIV, § 1; Minn. Const., art. I,
§ 7. The procedural protections of
due process are adaptable, depending on the particulars of each case. See
Morrissey v. Brewer, 408 U.S.
471, 481, 92 S. Ct. 2593, 2600 (1972). Under federal and Minnesota law, it is not fundamentally
unfair for a state to choose not to advise a driver of every possible
consequence of refusing chemical testing for alcohol. South Dakota v.
Neville, 459 U.S. 553,
564-66, 103 S. Ct. 916, 923-24 (1983); Davis v. Comm’r of
Pub. Safety, 517 N.W.2d 901, 904 (Minn.
In Davis, the Minnesota Supreme Court specifically noted that it was
“troubled by the deficiencies of the current advisory” but upheld the
constitutionality of the 1994 version of the advisory, which failed to inform
the DUI driver that refusal to submit to testing would result in a statutory
90-day loss of the driver’s license under the implied consent law. Davis,
517 N.W.2d at 904. The Davis court stated that it was
“unwilling at this time to say that the advisory violates procedural due
process,” but it did note that nothing in the then-current law “create[d] an
insurmountable barrier to holding that the due process clause of the Minnesota
Constitution requires the giving of a more complete implied consent
advisory.” Id. More recently, in Fedziuk v. Comm’r of Pub. Safety, 696
N.W.2d 340, 348 (Minn. 2005), the Minnesota Supreme Court struck down a
statutory amendment to the implied consent statute that eliminated the
requirement that judicial review of a driver’s prehearing license suspension
must be conducted within 60 days after the filing of the petition for judicial
review. There, the court held that the
amendment violated a driver’s “critical” due process rights. Id. at
349. These cases show that Minnesota continues to
protect the due process rights of drivers in the implied consent context.
The legislative change at issue here
enhances the punishment for refusal to submit to testing by making it a gross
misdemeanor for a driver to refuse to submit to testing. Minn. Stat. § 169A.26, subd. 2 (2004). I believe that this is a distinction that
does make a constitutional difference. See Goldberg v. Kelly, 397 U.S. 254,
262-263, 90 S. Ct. 1011, 1018 (1970) (due process protections vary according to
extent party “may be condemned to suffer grievous loss”). Because the driver is now subject to the much
harsher penalty of a gross misdemeanor sentence, the driver who is informed
only that refusing the test is a crime is not informed of the weighty liberty
interest at stake in his choice. If the
first-time arrestee submits to testing (without any aggravating factors) but
fails the test, the arrestee has committed a misdemeanor. Minn.
Stat. § 169A.27 (2004). If the arrestee
refuses to submit to testing, the arrestee has committed a gross
misdemeanor. Minn. Stat. § 169A.26,
subd. 2. Because of the liberty interest at stake, the
advisory should inform a driver that refusal to submit to testing will result
in a harsher penalty than failing the test.
In addition to comporting with due process, this simple change in the
implied consent advisory would also further the legislature’s objective to
encourage drivers to submit to chemical testing.
A misdemeanor sentence can include up to 90 days in jail and a fine of
$1,000. Minn. Stat. § 609.02, subd. 3 (2004). A gross misdemeanor sentence can include up
to a year in jail and a fine of $3,000. Minn. Stat. § 609.02,
subd. 4 (2004). There is also a
significant difference in the probationary periods for these categories of
offenses. See Minn. Stat. § 609.135, subd. 2(b), (d)
(2004) (enumerating the possibility of two years of probation for misdemeanor
offenses and six years of probation for gross misdemeanor offenses).