This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (2006).
IN COURT OF APPEALS
State of Minnesota,
Larry Lee Buller,
Blue Earth County District Court
File No. 07-CR-05-2217
Lori Swanson, Attorney General, 1800
Eileen Wells, Mankato City Attorney, Linda Boucher Hilligoss, Assistant City Attorney, 10 Civic Center Plaza, P.O. Box 3368, Mankato, MN 56002-3368 (for respondent)
John M. Stuart, State Public Defender, Cynthia J. Waldt, Assistant
Considered and decided by Willis, Presiding Judge; Minge, Judge; and Hudson, Judge.
Appellant challenges his conviction of third-degree driving while impaired (DWI), arguing that the district court improperly admitted the results of a preliminary breath test and blood test and improperly allowed an incriminating statement into evidence. Appellant also argues that the district court erred by enhancing his DWI charge. Because we conclude that the district court did not clearly err in rejecting the claim that these tests, appellant’s statement, and appellant’s waiver of counsel were coerced, and because the district court did not err in enhancing appellant’s DWI charge to a gross misdemeanor on the basis of his prior license revocation, we affirm.
On the evening of August 6, 2005, a Minnesota State Trooper observed appellant Larry Buller driving erratically and noticed that appellant’s license-plate tabs were obstructed. The trooper stopped appellant’s car and told appellant why he had been stopped. As he spoke with appellant, the trooper smelled alcohol on appellant’s breath and observed that appellant had bloodshot eyes. He then asked appellant to get out of the car and to complete several field sobriety tests. During the course of this initial investigation, appellant said that he had consumed alcohol earlier in the evening.
After conducting field sobriety tests, the trooper administered a preliminary breath test (PBT). The video recording of the stop documented the trooper’s advisory as follows:
This is just a preliminary breath test. You don’t have to blow into it if you don’t want to. If you don’t blow into it, I am going to arrest you for drinking and driving. . . . [G]o ahead and lean forward and take a deep breath and blow until I tell you to stop. . . . The number has got to be lower than 80. Ok you blew a .153. That is kind of what I assumed when I looked at your eyes. So I am placing you under arrest for driving under the influence of alcohol. Because of your prior DWI, this makes it a 3rd Degree DWI which is a gross misdemeanor. I still[,] [w]e still don’t have to[,] it is not a mandatory jail, as long as you stay cooperative and you can find someone over the age of 18 that will come and get you out of jail, you don’t have to stay alright? And when I say cooperative, I don’t mean[,] I mean if you decide not to give me a test, that’s fine. What I mean cooperative, I don’t want you spitting on me, I don’t want you hitting me. Things like that.
The trooper then told appellant
Appellant was charged with driving while impaired under Minn. Stat. § 169A.20, subd. 1(1), (5) (2004), and the state sought to enhance the DWI charges on the basis of a qualified aggravating factor under Minn. Stat. § 169A.26, subd. 1 (2004). Appellant filed a motion to suppress the results of the PBT and the blood test, in addition to prior statements. Appellant also moved to dismiss the enhanced charges. The district court denied appellant’s motions. The parties then submitted the case to the district court on stipulated facts under State v. Lothenbach, 296 N.W.2d 854 (Minn.1980), and the district court convicted appellant of third-degree driving while under the influence, a gross misdemeanor. This appeal follows.
The first issue is whether the district court clearly erred in finding that appellant was not coerced into submitting to a PBT, taking a blood test, and making incriminating statements. We also consider appellant’s claim that he was coerced into waiving his right to counsel.
a person’s consent is voluntary is a factual determination. State
v. Dezso, 512 N.W.2d 877, 880 (
A. Preliminary Breath Test (PBT)
argues that by telling him that he would be arrested if he did not take the PBT,
the trooper coerced appellant into taking the test. Under Minn. Stat.
§ 169A.41, subd. 1 (2004), a peace officer having reason to believe that an individual is driving or has driven a motor vehicle while impaired “may require the driver to provide a sample of the driver’s breath for a preliminary screening test.” (Emphasis added.) The purpose of a PBT is to assist the officer in determining whether a chemical test is necessary and whether probable cause exists to arrest the individual for DWI.
Here, the district court found that the trooper did not coerce appellant into giving a PBT. This finding is consistent with the record. Immediately prior to the PBT, the trooper told appellant: “You don’t have to blow into it if you don’t want to. If you don’t blow into it, I am going to arrest you for drinking and driving.” This advisory communicated that appellant was not required to take the test. And the trooper’s advisory also informed appellant that even if he refused to take the PBT, the trooper had probable cause to arrest appellant for driving while impaired, in violation of Minnesota law. Although appellant may well have found the possibility of being arrested upsetting, this statement was not coercive. It truthfully informed appellant of the consequences of refusing to take the PBT. Moreover, the district court’s factual finding that appellant voluntarily submitted to the PBT is entitled to deference. Accordingly, we conclude that the district court’s finding that appellant was not coerced into taking the PBT is not clearly erroneous.
B. Blood Test
Appellant also argues that by
advising him that if he cooperated he could avoid spending the night in jail,
the trooper coerced appellant into submitting to a blood test. The Minnesota Supreme Court has expressed its
“concern that law enforcement officials not mislead individuals with respect to
their obligation to undergo blood alcohol content testing.” McDonnell
v. Comm’r of Pub. Safety, 473 N.W.2d 848, 853 (
Examining the transcript of the trooper’s advisory, the district court found that “[the trooper] was focusing on no jail time only if [appellant] had someone over age 18 to come and get him and if he remained cooperative. [The trooper] clearly explained to [appellant] what he meant by the term ‘cooperative.’”
The district court’s findings are consistent with the record. The evidence of coercion is the trooper’s statement: “[I]t is not a mandatory jail, as long as you stay cooperative and you can find someone over the age of 18 that will come and get you out of jail, you don’t have to stay alright?” The trooper clarified what he meant by cooperation: “And when I say cooperative, I don’t mean[,] I mean if you decide not to give me a test, that’s fine. What I mean cooperative, I don’t want you spitting on me, I don’t want you hitting me. Things like that.” The trooper simply warned appellant that any subsequent disorderly behavior would influence whether or not he would be required to stay in jail overnight, irrespective of whether he submitted to the test. The trooper unambiguously told appellant that he was not required to submit to a blood test.
Furthermore, the record indicates that the trooper administered the implied-consent advisory in accordance with Minn. Stat. § 169A.51, subd. 2 (2004). This advisory informed appellant that (1) Minnesota law required him to take a chemical test; (2) he could refuse to take the test; and (3) refusal to take the test is a crime. Completion of this mandated advisory supports the district court’s finding that appellant was fully advised of his legal responsibilities and the potential penalties for failing to comply with those responsibilities.
Based on the entirety of the trooper’s statement, the trooper’s proper administration of the implied-consent advisory, and the deference accorded to the district court’s factual findings, we conclude that the district court’s determination that appellant was not coerced into submitting to the blood test is not clearly erroneous.
C. Incriminating Statements
asserts that “[t]he confession obtained by [the trooper] . . . is invalid
because of the direct promise of no jail time if he cooperated.” A parties’ assignment of error based on “mere
assertion” and without supporting authority is waived unless prejudice is
obvious on mere inspection. State v. Modern Recycling, Inc., 558
N.W.2d 770, 772 (
Here, appellant does not identify “[t]he confession” that he claims he gave involuntarily. And without knowing which statement was allegedly coerced, we are unable to meaningfully analyze appellant’s argument. Appellant also does not adequately support his assertion with legal authority. Accordingly, we conclude that appellant’s confession argument is waived for want of adequate briefing.
D. Waiver of Right to Counsel
appellant claims that “[h]e did not request counsel presumably because this
would not be cooperating which might lead to being put in jail.” This argument was only implicitly raised
before the district court, and the district court did not directly consider it. Generally, we will not review matters not
argued before or considered by the district court. Roby v.
State, 547 N.W.2d 354, 357 (
Appellant’s claim that he was coerced into waiving his right to counsel is not supported by the record. First, as discussed above, the trooper’s advisory to appellant was not coercive. The trooper clearly explained that by telling appellant he may not need to stay in jail overnight if he cooperated, he was asking appellant to behave orderly and respectfully.
Additionally, the record indicates that the trooper gave appellant a Miranda warning, which informed appellant that he had the right to remain silent, the right to a lawyer, and the right to have a lawyer appointed if he could not afford one. Appellant affirmed his understanding of these rights and agreed to speak with the trooper. The trooper also administered the implied-consent advisory, informing appellant that before deciding whether to submit to a blood or urine test, he “[had] the right to consult with an attorney” and that “[i]f [he] wish[ed] to do so, a telephone and directory [would have been] made available to [him].” Appellant affirmed his understanding of the advisory but chose not to consult with a lawyer.
Here, based on the entirety of the trooper’s statement and the advisories informing appellant of his right to counsel, we conclude that the record does not support appellant’s claim that he was improperly coerced into waiving his right to counsel.
final issue is whether the district court erred in enhancing appellant’s DWI
charge to a gross misdemeanor based on appellant’s prior license revocation. First, appellant claims that the use of his
prior license revocation to enhance his DWI charge violates Minnesota implied-consent
law. An individual who drives while
impaired, in violation of Minn. Stat. § 169A.20, subd. 1 (2004), “is guilty of
third-degree driving while impaired if one aggravating factor was present when
the violation was committed.” Minn.
Stat. § 169A.26, subd. 1(a) (2004). An
“‘[a]ggravating factor’” includes “a qualified prior impaired driving incident
within the ten years immediately preceding the current offense.” Minn. Stat. § 169A.03, subd. 3(1)
(2004). And a “‘[q]ualified prior
impaired driving incident’ includes prior impaired driving convictions and prior impaired driving-related losses of
the district court concluded that enhancement of appellant’s DWI charge based
on his 2004 DWI conviction was improper because, when appellant pleaded guilty
to that charge, he did not knowingly and intelligently waive his right to
counsel. But the district court did enhance
appellant’s DWI charge to a third-degree gross misdemeanor based on appellant’s
2004 impaired-driving-related license revocation. The district court’s enhancement on the basis
of this license revocation is consistent with the plain language of Minn. Stat.
§ 169A.03, subd. 22. And because
revocation of an individual’s license for impaired driving is a civil
proceeding, appellant’s 2004 license revocation was in no way dependent on his
related 2004 DWI conviction. See Maietta v. Comm’r of Pub. Safety, 663
N.W.2d 595, 600 (
also contends that the district court’s use of appellant’s prior license
revocation to enhance his DWI charge violates the Double Jeopardy Clause of the
United States Constitution. Even though
appellant raises this argument for the first time on appeal, and our
consideration of the argument is not required, Roby, 547 N.W.2d at 357, we consider this issue in the interests of
Double Jeopardy Clauses of the United States Constitution and the Minnesota
Constitution protect a criminal defendant from . . . a second prosecution for
the same offense after acquittal; a second prosecution for the same offense
after conviction; and multiple punishments for the same offense.” State
v. Hanson, 543 N.W.2d 84, 86 (
Minnesota Supreme Court squarely addressed this issue in Hanson, 543 N.W.2d at 88-89.
Observing that “[m]any statutes work in tandem with a civil and criminal
arm,” and concluding that license revocation is “remedial” and not punitive in
nature, the supreme court held that the use of a civil license revocation to
enhance a criminal DWI charge did not violate the Double Jeopardy Clauses of
the federal and state constitutions.
 Appellant argues in his brief that “the trial court incorrectly held the other misdemeanor charge may be used to enhance this charge to a gross misdemeanor.” The substance of this challenge is unclear. The district court unambiguously concluded that appellant’s prior, uncounseled conviction could not be used to enhance the current DWI charge, and the district court did not do so in convicting appellant of third-degree DWI. Accordingly, that claim in appellant’s brief is not addressed further.
 Throughout his brief, appellant asserts that the district court “dismissed” charges against appellant. Appellant misconstrues the district court’s order. The district court did not “dismiss” charges. Rather, the district court concluded that appellant’s former, uncounseled DWI conviction could not be used to enhance DWI charges to a third-degree DWI offense.