This opinion will be unpublished and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
Kimberly Ann Schramm, petitioner,
Commissioner of Public Safety,
Filed July 11, 2006
Affirmed; motion granted
Concurring specially, Klaphake, Judge
Washington County District Court
File No. C3-05-1095
Steven J. Meshbesher, Kevin M. Gregorius, Meshbesher &
Associates, P.A., 225 Lumber Exchange Building,
Mike Hatch, Attorney General, Sean R. McCarthy, Assistant
Attorney General, 1800
Considered and decided by Stoneburner, Presiding Judge; Klaphake, Judge; and Dietzen, Judge.
Appellant challenges the district court order sustaining the revocation of her driver’s license following her refusal to submit to alcohol-concentration testing, arguing that (1) she was denied due process when her implied-consent hearing was not held within 60 days; (2) the officers lacked probable cause to search another’s residence and to believe that she had violated the impaired-driving statutes; (3) her test refusal was reasonable under the circumstances; and (4) the implied-consent advisory is unconstitutional as a violation of due process. Because the district court properly applied the law and did not abuse its discretion and the implied-consent advisory is constitutional, we affirm.
In January 2005, police officers Michael Vandevort and Andria Lindeen responded to a call that a vehicle reportedly hit a dirt berm on a private driveway, rolled over on its top, and its occupant may require assistance. When the officers arrived at the scene, the vehicle was unoccupied and severely damaged. Two witnesses at the scene reported that its occupant, an adult female later identified as appellant Kimberly Ann Schramm, told the witnesses to walk to the residence and “get Bill,” who was later identified as appellant’s boyfriend William Winchell.
When Winchell was contacted, he went to the overturned vehicle and pulled appellant out of the vehicle by her ankles. Winchell told the witnesses to leave and not call the police, and then removed several empty bottles of wine and alcohol from the vehicle and threw them into a wooded area near the scene.
Based on their observations of the damage vehicle and their interviews of the witnesses, officers Vandevort and Lindeen, who were trained and certified paramedics, were concerned that appellant was injured and in need of emergency aid. The officers, who had their medical equipment, walked to the residence to offer emergency aid. As they approached the residence, the officers were stopped by Winchell, who smelled strongly of alcohol. Winchell stated that he would “take care of it,” and instructed them to “get off his property.” Because Winchell appeared intoxicated and did not state whether appellant was injured or not, Officer Lindeen concluded that they should talk to appellant.
At the residence, the officers observed appellant through a window sitting on the couch. The parties dispute what occurred next. Both officers stated that they knocked on the door to the residence, that appellant invited them into the front entryway for one to two minutes, and then requested that they continue the conversation outside, and that the officers complied. Appellant indicated to the officers that she was not injured and did not need an ambulance. Both officers reported that, during this initial conversation, appellant smelled strongly of alcohol, and exhibited bloodshot and watery eyes, slurred speech, and poor balance; and observed that appellant’s walk was unsteady and that she was “staggering.” When asked if she had been drinking, appellant stated that “she had been drinking earlier in the evening and that she had a fight with her boyfriend and had left in the vehicle and that’s when she rolled it over.”
Appellant testified that she did not consent to the officers’ entry into Winchell’s home. Initially, appellant stated, “I don’t remember letting them in. I don’t think I let them in. I think they entered,” but later testified that the officers walked in without permission and failed to identify themselves. Appellant also testified that she did not recall the officers inquiring about her injuries.
While outside the residence, Lindeen performed the horizontal gaze nystagmus test and appellant showed all six signs of impairment. Because of the negative 30 degree windchill, the officers did not perform field sobriety tests. When appellant stated that she was cold, the officers invited her to sit in the squad car, which she did with the door open. Appellant was then given a preliminary breath test, which she attempted to manipulate by feigning blowing into the machine. Lindeen hit the manual capture button on the machine, which came back with a blood-alcohol-concentration reading of .095.
Appellant was arrested for DWI and transported to the police station. Appellant was then read the Minnesota Implied Consent Advisory, which included warnings that “refusal to take a test is a crime” and “[i]f the test is unreasonably delayed or if you refuse to make a decision, you will be considered to have refused the test.” Appellant indicated with an oral “yes” that she understood the implied-consent advisory and stated that she wished to consult with an attorney. Appellant was provided a telephone and phonebooks for 35 minutes; during that time she contacted her mother once and Winchell several times. Appellant indicated that Winchell was attempting to locate an attorney for her, but she did not attempt to contact any attorneys on her own. When asked if she was finished using the phone, appellant answered, “Yes.” Appellant refused to take an alcohol-concentration test despite being warned that it would result in license revocation, and received a notice and revocation of her driver’s license.
Appellant filed a petition for judicial review of the revocation with the district court challenging the revocation. At the implied-consent hearing, respondent presented the testimony of officers Vandevort and Lindeen. Appellant admitted to driving the vehicle; but testified that the implied-consent advisory was “vague” and that she had been confused about her rights.
Following the implied-consent hearing, the district court sustained the revocation of appellant’s driving privileges, determining that appellant’s due-process rights to a timely review hearing were not violated; the officers’ warrantless entry into Winchell’s home was justified by the emergency exception and appellant’s consent; the officers had probable cause to believe that appellant had violated the impaired-driving statutes and to invoke the implied-consent law; appellant’s test refusal was not reasonable; and the implied-consent advisory did not violate due process. This appeal followed.
D E C I S I O N
Appellant raises four arguments on appeal. First, appellant argues that she was denied due process of law when her implied-consent hearing was not conducted within 60 days after filing her petition for judicial review, based on her contention that the district court erred by finding that the petition was filed on February 9 rather than January 21, 2005.
district court’s findings of fact will not be reversed unless clearly
erroneous. Jasper v. Comm’r of Pub. Safety, 642 N.W.2d 435, 440 (
Motion to Strike
As a threshold matter, respondent argues that appellant failed to present any evidence to the district court refuting the February 9 filing date and moves to strike any new evidence presented in appellant’s brief and appendix regarding an earlier filing date.
papers filed in the district court, the exhibits, and the transcript of the
proceedings shall constitute the record on appeal.
Timely Judicial Review
appellant petitioned for judicial review of the revocation of her driver’s
license, the governing statute provided no time period for conducting the
review hearing. See Minn. Stat. §
169A.53, subd. 3(a) (2004). The supreme
court subsequently held that the absence of a statutory time period was
unconstitutional and revived the previous version of the statute. Fedziuk
v. Comm’r of Pub. Safety, 696 N.W.2d 340, 348-49 (
Appellant contends that she mailed the petition for judicial review on January 20, 2005, and that the petition was received by the court administrator on January 21, 2005, and, therefore, the district court erred by finding that the petition was filed on February 9, 2005. But the record before the district court indicates that the court administrator stamped and initialed the petition as filed on February 9, 2005. This is the same filing date listed in the official court information system. And appellant presented no evidence to the contrary in district court. Consequently, the district court’s finding that February 9, 2005, is the proper filing date for triggering the 60-day time limit is not clearly erroneous.
A February 9, 2005 filing date resulted in expiration of the 60-day time limit on Sunday, April 10, 2005. Under Minn. R. Civ. P. 6.01, an additional day is added when the deadline falls on a Sunday. See Minn. Stat. § 169A.53, subd. 2(d) (judicial reviews must be conducted according to the Rules of Civil Procedure). Consequently, the April 11, 2005 date of the implied-consent hearing was within the 60-day time limit, and appellant’s due-process rights were not violated.
appellant argues that the officers lacked probable cause to search Winchell’s
residence and to arrest her for violating the impaired-driving statutes. A 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 (
Probable Cause to Search
Appellant argues that the officers entered Winchell’s residence without probable cause and, therefore, the district court erred by not suppressing evidence from the search. Respondent contends that the warrantless search was valid under the emergency aid and consent exceptions to the probable cause requirement.
In reviewing the legality
of a search, we will reverse the district court’s findings only if they are
“clearly erroneous or contrary to law.” State v. Munson, 594 N.W.2d 128, 135 (
The district court
found that the warrantless search was reasonable under the “emergency
exception.” See State v. Lopez, 698 N.W.2d 18, 23 (
Here, the officers were trained paramedics who, based on their observation of the severely damage vehicle and their interviews of the witnesses, believed that the occupant may have sustained injuries that required emergency aid. One witness reported that appellant was physically pulled by her ankles from the damaged vehicle and may be injured. And Winchell, who did not state whether appellant was injured, was unreliable in assessing whether appellant was injured due to his apparent intoxication. Consequently, the district court’s finding that the officers’ entry onto Winchell’s property was justified based on their reasonable belief, as established by objective facts, that appellant was in need of emergency aid, is not clearly erroneous.
district court also found that the warrantless search was valid based on
appellant’s consent. A search of a
residence that is conducted with consent constitutes an exception to the
requirement to have both a warrant and probable cause. State
v. Hanley, 363 N.W.2d 735, 738 (
appellant was present in Winchell’s home in the late evening and early morning
hours after the accident, suggesting that she was more than a “casual visitor”
and “had the run of the house.” See id. (party who was more than casual
visitor, had run of the property, and was old enough to understand seriousness
of entry had apparent authority to consent to search). And the officers testified that appellant
invited them into the front entryway, where they spoke for a few minutes, and
then at appellant’s request, continued the conversation outside the
residence. Although appellant testified
that she did not consent to the officers’ entry, this court defers to the factfinder’s
determination of the credibility of witnesses and the weight to be given to
their testimony. State v. Pieschke, 295 N.W.2d 580, 584 (
Probable Cause for Arrest
Appellant further argues that the officers lacked probable cause to arrest her for violating the impaired-driving statutes. Respondent contends that there was ample probable cause to arrest appellant because she exhibited multiple indicia of impairment.
police officer may lawfully arrest a person for a violation of Minn. Stat. § 169A.20
(2004) (driving while impaired) upon probable cause.
appellant was involved in a one-vehicle accident in a driveway, which suggests
impairment. See Heuton v. Comm’r of Pub. Safety, 541 N.W.2d 361, 363 (
appellant argues that her refusal to submit to alcohol-concentration testing
was reasonable because she was confused as to the consequences of the implied-consent
law. Whether refusal was reasonable
under the implied-consent law is a question of fact that will not be set aside
unless clearly erroneous. State, Dep’t of Highways v. Beckey, 291
the implied-consent law, a motorist may present as an affirmative defense that
a refusal was reasonable.
Here, the district court found that appellant was read and understood the implied-consent advisory and, therefore, there was no basis to conclude that refusal of the test was reasonable. The police reports, officer testimony, and the advisory form all indicate that appellant was read the advisory and that she stated affirmatively that she understood the advisory. Lindeen testified that at no time did appellant inform her that that she was confused as to her rights or the consequences of test refusal. Consequently, the district court’s finding is not clearly erroneous, and the district court properly rejected appellant’s affirmative defense of reasonable refusal.
appellant argues that the Minnesota Implied Consent Advisory violates due
process because it fails to adequately inform an arrested individual that the
crime of test refusal could result in harsher criminal penalties than a
first-offense test failure. Whether an
implied-consent advisory violates a motorist’s due-process rights is a question
of law, which this court reviews de novo.
Fedziuk v. Comm’r of Pub. Safety,
696 N.W.2d 340, 344 (
is a well-settled principle that due process does not require that the implied-consent
advisory warn a motorist of every possible consequence of taking or refusing to
take a chemical test. McDonnell v. Comm’r of Pub. Safety, 473
N.W.2d 848, 853 (
during the pendency of this appeal, this court addressed the same due-process
challenge to the implied-consent advisory raised by appellant. State
v. Myers, 711 N.W.2d 113, 116 (
Affirmed; motion granted.
KLAPHAKE, Judge (concurring specially)
concur in the result because it comports with State v. Myers, 711 N.W.2d 113 (