This opinion will be unpublished and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,
William Russell Clay,
Reversed and remanded
Faribault County District Court
File No. 22-K3-04-308
Mike Hatch, Attorney General, 1800 Bremer Tower, 445 Minnesota Street, St. Paul, MN 55101-2134; and
Brian D. Roverud, Faribault County Attorney, 412 North Nicollet, P.O. Box 5, Blue Earth, MN 56013 (for respondent)
John M. Stuart, State Public Defender, Melissa V. Sheridan, Assistant State Public Defender, 2221 University Avenue Southeast, Suite 425, Minneapolis, MN 55414 (for appellant)
Considered and decided by Halbrooks, Presiding Judge; Stoneburner, Judge; and Crippen, Judge.
U N P U B L I S H E D O P I N I O N
On appeal after being convicted of felony first-degree driving while impaired (DWI), based partly on blood tests showing a blood-alcohol level over the legal limit, appellant contends that he was conscious when the implied consent advisory was given and that his subsequent silence constituted a refusal to take the test. Because the district court failed to make findings as to whether appellant was unconscious (permitting the test) or conscious and silent (suggesting a refusal to take the test), we reverse and remand for a determination of that factual issue. We also determine that this Minnesota DWI charge was properly enhanced by appellant’s uncounseled Iowa operating while intoxicated (OWI) convictions.
On May 18, 2004, after being dispatched to the scene of a one-vehicle motorcycle accident, a Faribault County sheriff’s deputy found that the driver, appellant William Clay, was being transported by ambulance to the hospital. He notified another deputy to proceed to the hospital.
At the hospital, the deputy noticed a very strong odor of alcohol emitting from the room in which appellant was being treated. The officer identified himself and asked appellant if his first name was William and his last name was Clay. Appellant nodded in affirmation, and the deputy asked appellant if his middle name was Russell and if his birth date was August 30, 1951. Appellant again nodded in the affirmative. The deputy then read appellant the implied consent advisory.
During the reading of the implied consent advisory, appellant moaned and did not respond to any of the stated questions. At the deputy’s request, a medical technician drew a sample of appellant’s blood, which revealed a blood alcohol concentration of .21. At the time of the accident, appellant had at least three prior OWI convictions within the last ten years. Based on his blood alcohol level at the time of the accident and his prior driving record, appellant was charged with felony DWI.
Before trial, appellant moved to suppress the results of the blood test on the basis that the deputy who required the taking of the sample violated appellant’s due process rights by misleading him during the implied consent advisory. The district court denied the motion and appellant agreed to submit his case to the court on stipulated facts pursuant to State v. Lothenbach, 296 N.W.2d 854 (Minn. 1980). The district court found appellant guilty of felony first-degree DWI and sentenced him using his prior Iowa OWI convictions. This appeal followed.
D E C I S I O N
Appellant argues that the district court erred in admitting the results of the blood test performed after he was given the implied consent advisory and refused testing. 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).
Minnesota’s DWI law provides that a test “must not be given” after refusal. Minn. Stat. § 169A.52, subd. 1 (2004). “A person who is unconscious or who is otherwise in a condition rendering the person incapable of refusal is deemed not to have withdrawn the consent provided by [Minn. Stat. § 169A.51, subd. 1 (2004)] and the test may be given.” Minn. Stat. § 169A.51, subd. 6 (2004). But if a person is conscious and capable of responding to an implied consent advisory, the person’s silence constitutes a test refusal. See Lindemann v. Comm’r of Pub. Safety, 404 N.W.2d 909, 911 (Minn. App. 1987) (stating that a driver who fails to respond to an officer has refused to take the test where there is no indication the driver is incapable of refusal); see also Gabrick v. Comm’r of Pub. Safety, 393 N.W.2d 23, 25 (Minn. App. 1986) (stating that refusal to reply to a request to take an alcohol concentration test may constitute a refusal to submit to testing).
Appellant asserts that when the deputy initially questioned him about his name and date of birth, his affirmative responses demonstrated that he was capable of giving or refusing to give consent to permit a blood test. Thus, appellant argues that when he was asked for consent to administer the test, his silence constituted a refusal to consent to testing. Appellant adds that because he refused to consent to testing, the deputy had no authority to order a test and, therefore, the test results should be suppressed.
The state contends that although appellant could respond with a nod when asked his name, appellant only moaned and remained unresponsive for the rest of the implied consent. Consequently, the state asserts that because appellant was not responsive and not fully conscious, the deputy properly administered the test since consent under the statute had not been revoked. See Minn. Stat. § 169A.51, subd. 6.
In denying appellant’s motion to suppress, the district court did not determine whether appellant refused testing or whether he was incapable of consenting to testing. Rather, the court denied the motion and concluded that the deputy had probable cause to believe that appellant committed the offense of DWI.
It is well settled that the state does not violate an individual’s constitutional rights when compelling the individual to submit to a blood test against his or her will and using the test result in a criminal prosecution. Schmerber v. California, 384 U.S. 757, 772, 86 S. Ct. 1826, 1836 (1966). Such a test is permitted only when the police have probable cause to believe an individual was driving under the influence of alcohol and the blood sample is necessary to preserve evidence of defendant’s guilt. Tyler v. Comm’r of Pub. Safety, 368 N.W.2d 275, 278 (Minn. 1985). But although the state is allowed to compel an individual arrested for driving while intoxicated to submit to a blood alcohol test, the legislature has enacted the implied consent law to “avoid the violent confrontations which could occur when people are forced to submit to testing.” Nyflot v. Comm’r of Pub. Safety, 369 N.W.2d 512, 517 (Minn. 1985). “This is not to say that an individual has a right to refuse testing. Rather, the purpose of the implied consent advisory is to inform the driver of the serious consequences of his or her refusal.” State v. Scott, 473 N.W.2d 375, 377 (Minn. App. 1991) (citing Nyflot, 369 N.W.2d at 517).
Appellant argues that the district court’s ruling ignores the narrow exception to the general rule in Minn. Stat. § 169A.52, subd. 1, that when the implied consent law is invoked, a test must not be given if the driver refuses the test. Appellant claims that under the statute, once an officer reads the implied consent advisory to a driver, the officer may compel a test over the driver’s refusal only if the officer “has probable cause to believe that the person has violated section 609.21 (criminal vehicular homicide and injury).” Minn. Stat. § 169A.52, subd. 1. Appellant argues that because no one died as a result of his motor vehicle operation, and nobody other than appellant was injured in the accident, the probable cause exception contained in section 169A.52, subd. 1, does not apply. Accordingly, appellant contends that the deputy had no authority to administer the test after appellant refused to consent to testing.
In Scott, this court stated that:
When an officer has properly arrested a driver for driving under the influence a test may be taken with or without the driver’s consent. Once a decision has been made to utilize the implied consent law, however, an officer may not force the driver to submit to testing after the driver has refused. The implied consent law states in clear and unambiguous language that an officer shall not give a test if the driver refuses to permit one.
473 N.W.2d at 377 (citation omitted).
It is undisputed that the deputy read the implied consent advisory to appellant. When appellant did not answer the inquiry contained in the advisory, the deputy ordered the administration of the test. Although Minn. Stat. § 169A.52, subd. 1, allows the administration of the test over a driver’s objection if the “officer has probable cause to believe that the person has violated section 609.21 (criminal vehicular homicide and injury),” appellant correctly observes that the deputy had no reason to believe appellant violated section 609.21 because appellant was the only person involved in the accident. If appellant refused testing after the deputy read the implied consent advisory, because the exception in Minn. Stat. § 169A.52, subd. 1, does not apply, the deputy had no authority to administer the blood test.
The conclusion that the deputy had no authority to administer the blood test assumes appellant’s position that his silence constituted a refusal to submit to testing. But this is a disputed issue because the state asserts that appellant was incapable of revoking his consent due to his incapacitated state. If the state is correct, the administration of the blood test was appropriate. See Minn. Stat. § 169A.51, subd. 6. Because the district court did not decide the issue, but instead denied appellant’s motion on the basis that there was probable cause to administer the test, we reverse and remand for the court to decide the issue of whether appellant refused to consent to testing.
Appellant argues that because he had no pre-testing right to counsel in Iowa, his prior Iowa OWI convictions cannot be used to enhance the current offense to a felony. But the Minnesota Supreme Court recently held that the interests underlying Minnesota’s recognition of a driver’s limited right to counsel before the driver decides whether to submit to an alcohol-concentration test are not sufficient to justify disregarding a conviction entered in a state whose laws do not provide a right of counsel before making such test decisions. State v. Schmidt, 712 N.W.2d 530, 539 (Minn. 2006). Such convictions may be used to enhance Minnesota DWI offenses. Id. Appellant’s prior Iowa convictions may be used to enhance the Minnesota DWI charges.
Reversed and remanded.
* Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to Minn. Const. art. VI, § 10.
 We appreciate on the record that it is questionable whether appellant asserted his claim of consciousness to the district court. In the interests of justice, we address the issue. Roby v. State, 547 N.W.2d 354, 357 (Minn. 1996) (stating that in the interests of justice, this court can consider issues not raised below).
 The criminal vehicular homicide and injury statute provides that a person is guilty of that offense only if a person commits bodily harm to another as a result of operating a motor vehicle. Minn. Stat. § 609.21 (2004).