This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. ' 480A.08, subd. 3 (1994).
STATE OF MINNESOTA
IN COURT OF APPEALS
Douglas Paul Stabno, petitioner,
Commissioner of Public Safety,
Filed July 16, 1996
Hennepin County District Court
File No. 473081
Douglas H.R. Olson, 2885 Norwest Center, 90 S. Seventh St., Minneapolis, MN 55402 (for Appellant)
Hubert H. Humphrey, III, Attorney General, Jeffrey S. Bilcik, Assistant Attorney General, 525 Park St., Suite 500, St. Paul, MN 55103 (for Respondent)
Considered and decided by Harten, Presiding Judge, Willis, Judge, Stone, Judge.
U N P U B L I S H E D O P I N I O N
Appellant challenges the district court's affirmance of respondent Commissioner of Public Safety's revocation of his driver's license for refusal to submit to testing in an implied consent proceeding, arguing that he was incapable of refusal. We reverse.
Appellant Douglas Paul Stabno was arrested for DWI after having a one-car accident. Officers transported him to a police station for chemical testing, where they videotaped the implied consent advisory procedure. The officers administering the advisory concluded that appellant had refused testing, and respondent Commissioner of Public Safety therefore revoked his driver's license under the implied consent law.
Appellant sought review of the revocation in the district court. He testified that at the time of the accident and throughout the advisory he was not intoxicated but rather was suffering from an attack of diabetes-related hypoglycemia (low blood sugar) that rendered him entirely unaware of what was occurring. He thus argued that he was incapable of refusing testing and that the officers should have so concluded and administered the test pursuant to Minn. Stat. ' 169.123, subd. 2c (1994).  Appellant also argued that if he did refuse testing, his hypoglycemic condition made the refusal a reasonable one.
The district court, after hearing testimony and viewing the videotape, found that appellant had capacity to and did refuse testing. It further concluded that the lack of any evidence supporting appellant's testimony about hypoglycemia precluded a determination that his refusal was reasonable. He now appeals.
D E C I S I O N
Under the implied consent law, a driver consents to submit to a test to detect the presence of alcohol subject to statutory conditions. Minn. Stat. ' 169.123, subd. 2(a) (Supp. 1995). This consent is deemed continuing if the driver is unconscious or otherwise incapable of refusing testing. Minn. Stat. ' 169.123, subd. 2c.
Where a driver in an implied consent proceeding claims incapacity to refuse testing, this court must
scrutinize the record [to determine whether] there is adequate evidence to support the trial court's finding that the officer had no indication that appellant was physically incapable of refusal at the time of invoking the implied consent law.
Villeneuve v. Commissioner of Pub. Safety, 417 N.W.2d 304, 308 (Minn. App. 1988); see also Stiles v. Commissioner of Pub. Safety, 369 N.W.2d 347, 352 (Minn. App. 1985) (reversal of revocation in implied consent proceeding warranted where review of facts leaves this court with "firm conviction" that officer should have found driver incapable of refusing testing).
Several cases have addressed claims of inability to refuse testing, and what is most clear from their analysis is that the crucial factor is the degree of information about the driver's condition that was apparent to the officer at the time the implied consent advisory was given. See, e.g., Villeneuve, 417 N.W.2d at 308 (affirming revocation based on evidence that, at the time, officer had no indication driver had suffered concussion that may have affected ability to make a rational decision about testing); Thornton v. Commissioner of Pub. Safety, 384 N.W.2d 606, 608 (Minn. App. 1986) (finding driver had capacity to refuse and reinstating revocation based on evidence that although driver was injured and "somewhat disoriented," he was responsive to officer's questions); Stiles, 369 N.W.2d at 351-353 (reversing revocation based on uncontroverted testimony that driver was disoriented due to obvious severe injuries during implied consent advisory).
Because the implied consent procedure was videotaped in this case, we have the opportunity to review precisely what information was apparent to the officers at the time. In doing so, we conclude that appellant was plainly incapable of refusing testing.
Contrary to respondent's portrayal of the videotape, appellant appears extraordinarily incoherent throughout the entire procedure. Respondent's assertion that appellant was, "for the most part, responsive to the officer's questions" is grossly in error; the few "answers" that he does give, whether by mumbling or more frequently by slight head nods, are rarely even clear responses to the questions, but rather to the officers yelling appellant's name after his failures to respond. Indeed, the officers' own testimony regarding his condition that evening indicated that:
(1) they had to drag appellant out of the car and he was unable to stand on his own at that time and throughout their contact with him;
(2) appellant appeared incoherent and unable to understand directions and was drifting in and out of "an altered state of consciousness";
(3) at one point, they pinched appellant and he did not respond;
(4) appellant never gave a "clear, definitive, affirmative yes to any of [the officers'] questions";
(5) appellant's responses to questions were never more than mumbling or slight head shaking;
(6) during the reading of the implied consent advisory, one officer remembered "trying to arouse [appellant] and get his attention. Repeating his name over and over so that he would possibly understand what I was reading to him";
(7) the officers had to yell at appellant to be sure he was hearing and they were not sure that he understood what was going on; and
(8) during the Miranda warning given after the implied consent advisory, appellant was "unable to respond due to his altered state of consciousness."
Perhaps the most telling piece of evidence is the last comment by one officer on the videotape regarding appellant's failure to respond to questions about the Miranda warning: "I don't know if he won't or if he's incapable * * *." Faced with this information, we cannot conclude that the officers reasonably believed that appellant was capable of refusing testing.
We do not base our decision on appellant's claim of diabetes-related hypoglycemia. Rather, we simply conclude that his condition, regardless of its cause, was such that he was obviously incapable of refusing testing and that the officers should have proceeded with testing pursuant to Minn. Stat. ' 169.123, subd. 2c, deeming his consent "continuing" under such circumstances.
Respondent asserts that, as a matter of law, intoxication itself cannot result in an incapacity to refuse. We agree that it is the driver's burden to prove incapacity. See Thornton, 384 N.W.2d at 608 (once Commissioner offers evidence of capacity to refuse, burden shifts to driver to demonstrate incapacity). We disagree, though, that a cause other than intoxication must be established. Minn. Stat. ' 169.123, subd. 2c, allowing testing where the subject lacks capacity to refuse, does not state that such condition can only arise from accident-related trauma or otherwise contain any limitations on the cause of incapacity.
Respondent cites to Rude v. Commissioner of Pub. Safety, 347 N.W.2d 77 (Minn. App. 1984), for the proposition that
Under the implied consent statute, any inquiry into the driver's capacity to make a knowing, voluntary, or intelligent choice is immaterial.
Id.at 80 (quoting dictum from State, Dep't of Pub. Safety v. Hauge, 286 N.W.2d 727 (Minn. 1979)). However, Minn. Stat. ' 169.123, subd. 2c, was enacted after Rude, and we have noted that its provision for testing where incapacity is found places into question the continued validity of the Rude holding. Douglas v. Commissioner of Pub. Safety, 385 N.W.2d 850, 853 n.1 (Minn. App. 1986), review denied (Minn. June 19, 1986). It is manifest that someone unconscious from intoxication would necessarily be incapable of refusal; we see no reason why severe intoxication short of that point could not also result in an incapacity to refuse.
We do not intend to suggest by our decision that mere intoxication is sufficient to establish incapacity to refuse; instead the statutory requirement must be met. We have noted that
the decision to invoke or not to invoke the provisions of Minn. Stat. ' 169.123, subd. 2c must be made by a peace officer upon consideration of subjective criteria and often under conditions of rapidly changing circumstances. Those subjective decisions, made in good faith, are often scrutinized in subsequent legal proceedings. It is impossible to fashion infallible guidelines.
Douglas, 385 N.W.2d at 853. It is the unusual circumstances of this case, involving a driver who--for whatever reason--was plainly and thoroughly incoherent throughout the entire implied consent advisory. He was incapable of refusing, and his consent to testing should have been deemed continuing. Reversal of the finding of capacity is required.
* Retired judge of the district court, serving as judge of the Minnesota Court of Appeals by appointment pursuant to Minn. Const. art. VI, ' 10.
 Minn. Stat. ' 169.123, subd. 2c, provides:Consent of a person incapable of refusal not withdrawn. 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 subdivision 2 and the test may be given.