This opinion will be unpublished and

may not be cited except as provided by

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







State of Minnesota,





Robin E. Smith,




Filed June 13, 2006

Harten, Judge


Washington County District Court

File No. K6-04-6345


Mike Hatch, Attorney General, Thomas R. Ragatz, Assistant Attorney General, 1800 Bremer Tower, 445 Minnesota Street, St. Paul, MN  55101-2134; and


Jennifer Santoro Bovitz, 14949 62nd St. N., P.O. Box 6, Stillwater, MN  55082 (for respondent)


Rachel B. Rosen, Charles A. Ramsay, 1700 West Highway 36, Suite 450, Roseville, MN  55113 (for appellant)


            Considered and decided by Stoneburner, Presiding Judge, Dietzen, Judge, and HartenCrippen, Judge.

U N P U B L I S H E D   O P I N I O N


            Appellant was convicted of criminal vehicular operation in violation of Minn. Stat. § 609.21, subd. 1(3) (2004), after having a single-car accident that killed her passenger.  Appellant raises three issues:  (1) whether she was entitled to receive a Miranda warning before being questioned by police at the hospital following the accident; (2) whether the district court erred in refusing to suppress certain evidence that she alleges was obtained without probable cause or without exigent circumstances that would support a finding of probable cause; and (3) whether the district court erred in finding Minn. Stat. § 169A.52, subd. 1 (2004), constitutional.  Because we find no error in the district court’s evidentiary rulings or legal determinations, we affirm.      


            During the evening hours of 6 June 2004, appellant Robin E. Smith lost control of her Jeep, swerved across 220th Street in New Scandia Township, slid into a ditch, and rolled the Jeep three or four times.  Appellant’s passenger, Patrick Mitchell, was thrown from the Jeep and died of multiple traumatic injuries.  Just before the accident, appellant had been driving down the middle of the road and narrowly missed colliding with an oncoming vehicle driven by Matthew Schlenker.  When Washington County Deputy Sheriff James Wick arrived at the scene, emergency medical services (EMS) personnel advised him that appellant had been the driver.           

            EMS personnel took appellant to Wyoming Fairview Hospital.  While appellant was in an examination room, but not being treated or monitored by hospital staff, Deputy Wick sought her out.  Wick noticed an odor of alcohol on her, and appellant admitted that she had been drinking.  Wick therefore read her the standard implied consent advisory.  In a recorded statement that followed, Wick informed appellant that she was required to take the test because she had “been placed under arrest for th[is] offense or ha[d] been involved in a motor vehicle accident resulting in property damage or personal injury or death[.]”  Appellant acquiesced, without consenting or objecting, to a blood test, which revealed an alcohol concentration of .17.  The deputy proceeded to question appellant without giving her a Miranda warning. 

            Appellant was charged with three counts of criminal vehicular operation in violation of Minn. Stat. § 609.21, subd. 1(2), (3), and (4) (2004).  Appellant moved to suppress the results of the blood test and her statements.  The district court denied her motion, ruling that appellant was not entitled to a Miranda warning before being questioned by Wick and upholding the constitutionality of the statute that allowed her blood to be drawn without her consent, Minn. Stat. § 169A.52 (2004). 

            The parties stipulated to dismissal of two counts of criminal vehicular operation, leaving one count of causing the death of another while operating a motor vehicle and while having an alcohol concentration of .10 or more and agreed to submit the matter pursuant to State v. Lothenbach, 296 N.W.2d 854 (Minn. 1980), stipulating to a record consisting of the criminal complaint and police reports.  Minn. Stat. § 609.21, subd. 1(3).  The district court found appellant guilty and sentenced her to a prison term of 48 months with execution conditionally stayed. 

            Appellant claims that the district court erred in (1) ruling that she was not entitled to a Miranda warning; (2) declining to suppress evidence obtained from the warrantless blood draw; and (3) upholding the constitutionality of the part of the implied consent statute that allows for mandatory chemical testing, Minn. Stat. § 169A.52, subd. 1 (2004).                           


1.         Miranda Warning.

            Appellant claims that she should have received a Miranda warning before she was questioned by Deputy Wick at the hospital because she was in police custody.  See Miranda v. Arizona, 384 U.S. 436, 444, 86 S. Ct. 1602, 1612 (1966) (requiring accused to receive notice of certain constitutional rights before being subjected to custodial interrogation by police).  The procedural safeguards of Miranda are required when a person is in police custody and subject to interrogation.  Rhode Island v. Innis, 446 U.S. 291, 301, 100 S. Ct. 1682, 1689 (1980).  “An appellate court reviews a district court's findings of fact for clear error, but "makes an independent review * * * of the district court's determination regarding custody and the necessity of a Miranda warning.”  State v. Miller, 573 N.W.2d 661, 670 (Minn. 1998).

            “The determination of whether a suspect is in custody is an objective inquiry.”  State v. Mellett, 642 N.W.2d 779, 787 (Minn. App. 2002), review denied (Minn. Jul. 16, 2002).  A district court may determine that a person is in custody if “a reasonable person in the detainee’s situation would have understood that [s]he was in custody.”  State v. Hince, 540 N.W.2d 820, 823 (Minn.1995) (citation omitted).  If a suspect is not formally under arrest, a district court must consider all of the surrounding circumstances to assess whether a reasonable person in the suspect’s position would have believed that she was in custody to the degree associated with arrest.  State v. Champion, 533 N.W.2d 40, 43 (Minn.1995); see State v. Staats, 658 N.W.2d 207, 212 (Minn. 2003) (non-custody indications include questioning in suspect’s home, suspect not under arrest, suspect free to leave, brevity of questioning, “nonthreatening environment,” and suspect’s ability to make phone calls).  A “coercive environment” that falls short of being custodial does not mandate a Miranda warning.  Hince, 540 N.W.2d at 824.

            Appellant was questioned in a hospital examination room, not a police station, and she had arrived there by ambulance, not by police car.  The record shows that she had no contact with Deputy Wick prior to his appearance in the examination room.  Hospital staff had closed the door of the room.  Appellant was not placed under arrest when Wick approached her, she did not ask him to leave, and the questioning was brief and not coercive.  Appellant declined to answer one question about what she had been drinking.  She was not physically restrained. 

            Appellant claims that she was in custody because Deputy Wick told her that she was under arrest.  But the advisory that Wick read to her did not inform her that she was under arrest; it stated that she was either “under arrest . . . or ha[d] been involved in a motor vehicle accident resulting in property damage or personal injury or death.” (Emphasis added.) 

            Under the totality of these circumstances, the district court properly found that appellant was not in custody when Deputy Wick questioned her.  See Staats, 658 N.W.2d at 212; Champion, 533 N.W.2d at 43.

2.         Admission of Evidence.

            Appellant also raises issues regarding the district court’s refusal to suppress the evidence of her blood test, arguing that Deputy Wick did not have probable cause to believe she was the driver of the vehicle or that she had been drinking alcohol, and exigent circumstances did not otherwise justify a warrantless draw of blood.  The district court’s decision whether to suppress evidence is a question of law, and an appellate court “independently reviews the facts” to determine whether the district court erred in its decision.  State v. Harris, 590 N.W.2d 90, 98 (Minn. 1999).

            a.         Probable Cause to Believe Appellant Was the Driver 

            Evidence in the record supports a finding that Deputy Wick had probable cause to believe that appellant was the driver.  The accident was a single-car accident, and EMS personnel, who were the first to arrive at the scene, discerned that two persons were riding in the Jeep—appellant, a female, and Patrick Mitchell, a male.  When Wick arrived, appellant was in an ambulance, and paramedics told him that a female was driving.  This evidence was sufficient to establish probable cause for Wick to believe that appellant was the driver because she was the only female occupant of the Jeep.  See State v. Ortiz, 626 N.W.2d 445, 450-51 (Minn. App. 2001) (district court may determine probable cause on hearsay evidence, or other evidence that would be inadmissible at trial), review denied (Minn. June 27, 2001); Minn. R. Crim. P. 11.03 (probable cause determination to be made on “entire record, including reliable hearsay”).

            Appellant nonetheless argues that any information related by appellant to EMS personnel was subject to the physician-patient privilege.  This privilege prohibits “a licensed physician or surgeon, dentist, or chiropractor” from “disclos[ing] any information * * * which the professional acquired in attending the patient in a professional capacity, and which was necessary to enable the professional to act in that capacity.”  Minn. Stat. § 595.02, subd. 1(d) (2004).  Here, even assuming that the EMS technician with whom Deputy Wick spoke was the type of medical professional to whom the privilege applies, the identity of the driver was unnecessary to enable appellant's treatment.  Thus, the physician-patient privilege did not prohibit EMS personnel from informing Wick that appellant was the Jeep driver.  See State v. Heaney, 689 N.W.2d 168, 173 (Minn. 2004) (noting that medical privilege applies to information necessary to enable medical professional to act in professional capacity).

            b.         Probable Cause to Believe Appellant Was Under the Influence of Alcohol

            Appellant also claims that Deputy Wick did not have probable cause to believe that she was under the influence of alcohol when he informed her that she must submit to a blood test.  Respondent claims that this issue was not raised or considered by the district court, and is therefore waived.  See State v. Lieberg, 553 N.W.2d 51, 56 (Minn. App. 1996).  But even if it were not waived, appellant’s claim fails.

            “Probable cause exists when all the facts and circumstances would lead a cautious person to believe that the driver was under the influence.”  Davis v. Comm’r of Pub. Safety, 509 N.W.2d 380, 392 (Minn. App. 1993) (circumstances creating probable cause included facts that suspect smelled of alcohol, had bloodshot and glossy eyes, slurred speech, admitted to drinking, and failed field sobriety tests), aff'd, 517 N.W.2d 901 (Minn.1994); see also Heuton v. Comm’r of Pub. Safety, 541 N.W.2d 361, 363 (Minn. App. 1995) (under certain circumstances, an officer may need only “one objective indication of intoxication to constitute probable cause to believe a person is under the influence”).  At the time of the blood test, Deputy Wick knew that appellant was the driver in a single-car accident in which the passenger died, appellant admitted she had been drinking, and appellant smelled of alcohol.  These facts were sufficient to give Wick probable cause to believe that appellant was under the influence of alcohol at the time of the accident.  See Heuton, 541 N.W.2d at 363.

            Appellant claims that Deputy Wick became suspicious that she had been drinking alcohol only after he read her the implied consent advisory and that he therefore lacked probable cause to read her the advisory.  This claim is unsupported in the record.  The criminal complaint, which enumerates the facts in chronological order, states that Wick asked appellant if she had been drinking before he read her the advisory.  Wick’s pretrial testimony was consistent with the complaint.  At the omnibus hearing, when appellant’s attorney asked Wick if “at first [he] read her the implied consent advisory . . .?”, he replied, “No.”  We find no merit to appellant’s claim that Wick lacked probable cause to believe that she had been consuming alcohol before he read her the implied consent advisory.    

            c.         Exigent Circumstances 

            Appellant further claims that respondent failed to show exigent circumstances that would eliminate the need for Deputy Wick to obtain a warrant or consent before requiring appellant to submit to a blood test.  The facts of this case resemble those in cases wherein both the United States Supreme Court and the Minnesota Supreme Court have upheld the constitutionality of a warrantless seizure of a blood sample when the accused has harmed another while driving under the influence of alcohol.  See Schmerber v. California, 384 U.S. 757, 770-71, 86 S. Ct. 1826, 1835-36 (1966); State v. Lee, 585 N.W.2d 378, 380-81 (Minn. 1998); State v. Aguirre, 295 N.W.2d 79, 82 (Minn. 1980).  Nevertheless, appellant urges that we apply a totality-of-the-circumstances test for determining when exigent circumstances exist.  But such a test is not required because the single exigent factor of possible destruction of blood-alcohol evidence is sufficient.  See State v. Gray, 456 N.W.2d 251, 256 (Minn. 1990) (comparing two types of tests for exigent circumstances and their application, noting that facts of Schmerber amounted to a single factor exigent circumstance excusing need for warrant).  We find no error in the district court’s probable cause determinations.

3.         Constitutionality of the Implied Consent Statute.

            An appellate court reviews de novo issues of constitutional interpretation.  Fedziuk v. Comm’r of Pub. Safety, 696 N.W.2d 340, 344 (Minn. 2005).  A person who challenges the constitutionality of a statute must overcome every presumption in favor of its constitutionality.  State v. Burns, 524 Minn. 516, 519 (Minn. App. 1994), review denied (Minn. Jan. 13, 1995); see Minn. Stat § 645.17(3) (2004) (courts presume legislature intends to uphold Minnesota and United States constitutions).

            Appellant challenges the constitutionality of Minn. Stat. § 169A.52, subd. 1, which provides that a driver may refuse to submit to chemical testing for alcohol, but “if a peace officer has probable cause to believe that the person has violated section 609.21 (criminal vehicular homicide and injury), a test may be required and obtained despite the person’s refusal.”  Id.  Appellant contends that the Minnesota legislature exceeded its power by enacting a statute that allows a warrantless, nonconsensual removal of a driver’s blood in the absence of exigent circumstances.

            Since 1966, Schmerber has been the seminal case on this issue.  In Schmerber, the Supreme Court upheld the constitutionality of a blood sample extraction from a person accused of drunk driving, concluding that the extraction did not violate Fourth Amendment search and seizure principles and was justified by the exigent circumstances because the percentage of alcohol in a drunk driver’s blood could dissipate quickly.  Id. at 770-71, 80 S. Ct. at 1835-36.  The Schmerber court limited its holding to the “special facts” of that case, in which a police officer took the accused to the hospital but needed to return to an accident scene for investigation and did not have time to seek a search warrant.  Id

            Minnesota cases also permit police to seek a blood sample without first obtaining a warrant if they have probable cause to believe that a driver has harmed another while operating a motor vehicle while under the influence of alcohol.  See, e.g., State v. Paul, 548 N.W.2d 260, 267 (Minn. 1996) (permitting warrantless “hot pursuit” entry of drunk driver suspect’s home); State v. Storvick, 428 N.W.2d 55, 60 (Minn. 1988) (permitting warrantless entry of home when accused had been drinking and police needed to ascertain accused’s blood alcohol level); State v. Johnson, 689 N.W.2d 247, 252 (Minn. App. 2004) (permitting warrantless entry of drunk driver’s home to obtain blood alcohol test when test was justified by exigent circumstance of need to preserve evidence in criminal vehicular homicide case), review denied (Minn. Jan. 20, 2005); see also Mellett, 642 N.W.2d at 785 (rejecting appellant’s claim that statute criminalizing refusal to submit to testing statute violated appellant’s Fourth Amendment rights).  “When an officer has probable cause to believe a driver is intoxicated and has committed criminal vehicular operation, the officer may order the taking of a blood sample without obtaining the driver’s consent.”  State v. Condon, 497 N.W.2d 272, 275 (Minn. App. 1993) (citations omitted).  Section 169A.52, subd. 1, codifies well settled and controlling caselaw that rejects appellant’s constitutional argument.  The district court correctly concluded that the statute is constitutional.   


* Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to Minn. Const. art. VI, § 10.