†This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. ß 480A.08, subd. 3 (2006).

 

STATE OF MINNESOTA

IN COURT OF APPEALS
A06-1857

 

John David Bultman,
petitioner,
Respondent,

vs.

Commissioner of Public Safety,
Appellant.

 

Filed October 16, 2007

Reversed

Peterson, Judge

 

Dakota County District Court

File No. C2-06-12709

 

Jason W. Eldridge, Caplan Law Firm, P.A., 525 Lumber Exchange Building, 10 South Fifth Street, Minneapolis, MN† 55402 (for respondent)

 

Lori Swanson, Attorney General, Emerald A. Gratz, Assistant Attorney General, 1800 Bremer Tower, 445 Minnesota Street, St. Paul, MN 55101-2134 (for appellant)

 

††††††††††† Considered and decided by Peterson, Presiding Judge; Lansing, Judge; and Klaphake, Judge.

U N P U B L I S H E D†† O P I N I O N

PETERSON, Judge

††††††††††† In this appeal from an order rescinding the revocation of respondentís driverís license under the implied-consent law, appellant Commissioner of Public Safety argues that the district court erred in concluding that respondentís refusal to submit to a breath test was reasonable.† We reverse.

FACTS

††††††††††† Respondent John David Bultman was arrested for driving while impaired (DWI) and transported to the Eagan Police Department.† It was extremely cold outside at the time of the arrest.† At the police department, an officer read Bultman the implied-consent advisory.† Bultman indicated that he understood the advisory and asked to speak with an attorney.† After speaking with an attorney, Bultman agreed to submit to a breath test.† The officer prepared an Intoxilyzer 5000 to administer a test.† When the machine was prepared, the officer told Bultman that it was time to take the test, and Bultman told the officer that he wanted another 15 minutes to warm up before providing a breath sample. †The officer told Bultman that he had four minutes to provide a breath sample and that if he failed to provide a sample in the time allowed, his failure would be deemed a refusal to take the breath test.†

Bultman testified that there were no clocks in the room and he tried to wait as long as he could during the four minutes before attempting to take the test.† Bultman also testified that the officer warned him a couple of times that he needed to take the test, and he requested more time, but the officer was not going to allow that.† Before four minutes had passed, Bultman stood up and walked to the Intoxilyzer.† As he was approaching the Intoxilyzer, the four-minute period expired, and the Intoxilyzer shut down.† The officer told Bultman that his driverís license was being revoked for refusing to take the test.†

Bultmanís driverís license was revoked, and he petitioned for judicial review of the revocation.† Following a hearing, the district court concluded that ď[Bultmanís] refusal to submit to the Intoxilyzer 5000 test at the Eagan Police Department was based upon reasonable grounds.Ē† The district court rescinded the revocation, and this appeal followed.

D E C I S I O N

Under certain circumstances, the implied-consent statute requires the Commissioner of Public Safety (commissioner) to revoke a personís license to drive if the person refuses to submit to a chemical test for the presence of alcohol.† Minn. Stat. ß 169A.52, subd. 3(a) (Supp. 2005).† ďIt is an affirmative defense for the [driver] to prove that, at the time of the refusal, the [driverís] refusal to permit the test was based upon reasonable grounds.Ē† Minn. Stat. ß 169A.53, subd. 3(c) (Supp. 2005).† A driver who asserts the affirmative defense of reasonable refusal has the burden of proving reasonableness by a preponderance of the evidence.† Winder v. Commír of Pub. Safety, 392 N.W.2d 21, 24 (Minn. App. 1986), review denied (Minn. Oct. 22, 1986).†

The questions of whether a person arrested refused to take the test or had reasonable grounds to do so are questions of fact.† Where . . . the evidence and the inferences to be drawn therefrom conflict, the court holding the hearing must find the facts.† Upon appeal, the question presented is whether such findings are supported by the evidence.

 

State, Depít of Highways v. Beckey, 291 Minn. 483, 486-87, 192 N.W.2d 441, 444-45 (1971).

Findings of fact will be upheld unless they are clearly erroneous.† Ekong v. Commír of Pub. Safety, 498 N.W.2d 319, 321 (Minn. App. 1993).† ďFindings of fact are clearly erroneous only if the reviewing court is left with the definite and firm conviction that a mistake has been made.Ē† Fletcher v. St. Paul Pioneer Press, 589 N.W.2d 96, 101 (Minn. 1999) (quotation omitted).

I.

††††††††††† Beyond the duty to make the initial decision of whether or not to submit to a test, the courts have recognized that the implied consent law imposes on a driver a requirement to act in a manner so as not to frustrate the testing process.† If a driver does frustrate the process, his conduct will amount to a refusal to test.

 

Busch v. Commír of Pub. Safety, 614 N.W.2d 256, 259 (Minn. App. 2000).†

††††††††††† Appellant commissioner argues that Bultmanís conduct tended to subvert the testing process and, therefore, operated as a refusal.† The district court found that Bultmanís conduct did not ďevidence an intention to refuse the testĒ and that ď[i]n light of [Bultmanís] expressed consent to take the test and affirmative action to approach the machine to provide a breath sample within the time period required by the officer, [the officerís] determination that [Bultman] refused testing is not supported.Ē†

††††††††††† We have found no authority that requires a showing of intent to refuse the test in order to prove that a driverís conduct amounts to a refusal.† The implied-consent statute specifically provides that ďwhen a test is administered using an infrared or other approved breath-testing instrument, failure of a person to provide two separate, adequate breath samples in the proper sequence constitutes a refusal.Ē† Minn. Stat. ß 169A.51, subd. 5(c) (2004).[1]† Bultman requested an additional 15 minutes to warm up, and when the officer refused his request, Bultman did not make any further demands and apparently attempted to comply with the four-minute time limit.† But Bultmanís delay in waiting until almost the end of the four-minute testing period before approaching the Intoxilyzer resulted in the failure to provide an adequate breath sample within the four-minute time limit, and under Minn. Stat. ß 169A.51, subd. 5(c), this failure constitutes a refusal.† See Cole v. Commír. of Pub. Safety, 535 N.W.2d 816, 818 (Minn. App. 1995) (explaining that failure to produce adequate breath sample within four-minute period constitutes refusal and affirming finding that officer provided driver reasonable opportunity to produce a sample even though officer used much of the time changing the mouthpiece and examining the machine); Frost v. Commír of Pub. Safety, 401 N.W.2d 454, 456 (Minn. App. 1987) (affirming finding of refusal when driver refused to take alcohol-concentration test unless his doctor was present).

II.

The district court found that Bultmanís failure to provide a breath sample was not an unreasonable refusal to submit to testing.† The court explained:

The officer told [Bultman] that he had four minutes to provide a breath sample into the machine.† At no time did the officer explain how long it would take to provide the required breath sample.† At approximately 3 minutes and 50 seconds, [Bultman] stood up and approached the Intoxilyzer machine.† Just as [Bultman] was reaching for the mouthpiece, the Intoxilyzer timed out.† The officer informed [Bultman] that this was a refusal.

 

††††††††††† . . . In this case, it does seem that [Bultman] was confused by the officerís explanation that he had four minutes to provide a breath sample.† The officer didnít direct [Bultman] to stand up and take the test immediately.† The officer simply told [Bultman] he had four minutes to provide a breath sample.† It was reasonable for [Bultman] to assume that the officer meant that [Bultman] had four minutes to stand up and blow into the mouthpiece of the machine.† [Bultmanís] failure to immediately provide a breath sample was not unreasonable in light of the officerís explanation and the absence of any clocks or warnings that the time to provide a breath sample was about to expire and certainly does not evidence an intention to refuse the test.†

 

††††††††††† ďA refusal may be reasonable if the police have misled a driver into believing a refusal was reasonable, or if the police have made no attempt to explain to a confused driver his obligations.Ē† Norman v. Commír of Pub. Safety, 412 N.W.2d 22, 23 (Minn. App. 1987).† But the evidence would not support a finding that the officer who prepared the Intoxilyzer misled Bultman into believing that failing to provide a breath sample within four minutes was reasonable.† As the district court found, the officer told Bultman that he ďhad four minutes to provide a breath sample.Ē† This was a correct statement about Bultmanís obligation to provide a breath sample.† And because Bultman did not inform the officer that he was confused about his rights, the officer had no obligation to clear up any alleged confusion.† See Norman, 412 N.W.2d at 24 (stating that officer had no reason to clear up driverís alleged confusion about obligation to take test when driver did not inform officer that he was confused about his rights).† Bultman argues that his failure to immediately begin taking the test should have indicated confusion to the officer.† But because the entire four minutes is not required to provide a sample, Bultmanís decision to use some of the allotted time to warm up did not necessarily indicate confusion.† Cf. OíBrian v. Commír of Pub. Safety, 552 N.W.2d 760, 761 (Minn. App. 1996) (noting that four-minute period ďincludes time for interruptions for further instructions, listening to arguments, answering questions and changing mouthpiecesĒ); Cole, 535 N.W.2d at 818 (concluding that driver ďhad the benefit of a four-minute opportunity even though the officer used much of the time changing the mouthpiece and examining the machineĒ).†

††††††††††† Furthermore, even if the officerís explanation confused Bultman, and, as a result of the confusion, Bultman believed that he had four minutes to stand up and begin blowing into the mouthpiece of the machine, Bultman did not begin blowing into the mouthpiece within four minutes.† Bultman stood up and approached the mouthpiece within four minutes, but he did not reach the mouthpiece before the four-minute period expired.† Therefore, the evidence does not support a finding that Bultmanís refusal was reasonable because his failure to provide a breath sample was caused by confusion about his obligation to submit to a test.

††††††††††† Reversed.



[1] Bultman contends in his brief that the officer did not tell him that a complete test required two breath samples or that in order to complete testing with the Intoxilyzer 5000, a subject must actually perform two tests.† But Bultman did not need to produce two breath samples in the four-minute period.† See Cole v. Commír. of Pub. Safety, 535 N.W.2d 816, 818 (Minn. App. 1995) (indicating that Intoxilyzer 5000 operators allow a person two four-minute periods to produce two separate, adequate breath samples).† Bultman failed to produce even one breath sample during the four-minute period.