This opinion will be unpublished and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
C6-96-292

Howard A. Gitelson, petitioner,
Appellant,

vs.

Commissioner of Public Safety,
Respondent.

Filed July 30, 1996
Affirmed
Davies, Judge

Ramsey County District Court
File No. C19510763

John G. Westrick, Westrick & McDowall-Nix, P.L.L.P., 400 Minnesota Bldg., 46 E. Fourth St., St. Paul, MN 55101 (for Appellant)

Hubert H. Humphrey III, Attorney General, Joel A. Watne, Assistant Attorney General, 500 Capitol Office Bldg., 525 Park St., St. Paul, MN 55103-2106 (for Respondent)

Considered and decided by Willis, Presiding Judge, Davies, Judge, and Holtan, Judge.*

U N P U B L I S H E D O P I N I O N

DAVIES, Judge

Respondent Commissioner of Public Safety revoked appellant Howard A. Gitelson's driver's license under the implied consent law for refusal to submit to testing. Appellant challenges the trial court's order sustaining the revocation, arguing that his refusal was reasonable. We affirm.

FACTS

A state patrol officer stopped appellant Howard A. Gitelson on suspicion of DWI. Appellant failed a preliminary breath test (PBT) and was placed under arrest. The officer then read the implied consent advisory to him. The advisory, which was recorded and then transcribed into the record at trial, specifically states that refusal to take the test is a crime. Appellant responded that he understood the advisory.

When asked if he wanted to consult with an attorney, appellant asked questions about the consequences of asserting that right. After the officer answered those questions, appellant indicated that he did not want to consult with an attorney at that time.

The officer then asked appellant if he would take a breath test. Appellant asked several questions about why he was being asked to take another breath test after having taken the PBT and about the consequences of refusal. The officer explained the difference between the two tests and told appellant that no test would be given if he refused. Appellant then asked, "If I say no, do I just drive home?" The officer explained that if he refused the test, he would still be under arrest and would "be booked and held for four hours for sobriety." After a few more similar questions and answers about the situation, appellant refused to take the test. His license was subsequently revoked under the implied consent law.

Appellant sought judicial review in district court, claiming that his refusal was reasonable. He argues, in essence, that his questions indicated that he was confused about the consequences of refusal and that the officer should therefore have re-advised him that refusal is a crime. He claims that the officer misled him by simply responding that no test would be given if he refused.

The trial court characterized appellant's questions about the consequences of refusal not as going towards the later consequences of refusal, but only as to whether he would be released if he refused testing. The trial court found that "it is quite clear that [appellant] understood his rights" and that he "was [not] in any way misled." The court noted that the advisory is "totally clear" and that, because he was a graduate student in computer science, appellant's claim of confusion was not credible.

D E C I S I O N

A claim that refusal was reasonable is an affirmative defense to a revocation under the implied consent law. Minn. Stat. ' 169.123, subd. 6 (1994).

A 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.

Frost v. Commissioner of Pub. Safety, 401 N.W.2d 454, 456 (Minn. App. 1987) (citing State, Dep't of Pub. Safety v. Lauzon, 302 Minn. 276, 277, 224 N.W.2d 156, 157 (1974)). These cases usually involve conflicting stories. Therefore,

[w]hether a refusal is reasonable is generally characterized as a question of fact for the trial court, which will be reversed only if clearly erroneous.

Haug v. Commissioner of Pub. Safety, 473 N.W.2d 900, 902 (Minn. App. 1991) (citing State, Dep't of Highways v. Beckey, 291 Minn. 483, 486-87, 192 N.W.2d 441, 444-45 (1971)). Determinations of the "credibility and weight to be given to the testimony" are for the finder of fact alone. See State v. Engholm, 290 N.W.2d 780, 784 (Minn. 1980) (jury's province to determine witnesses' credibility and weight of evidence).

Here, the trial court's decision is based primarily on a credibility determination, leading to a finding that appellant was not confused as to his rights and obligations. The record supports that finding. There is no dispute that appellant was initially advised that refusal to take the test is a crime and that he told the officer that he understood the advisory. The officer answered his questions about consulting with an attorney and explained the difference between the preliminary and later breath test. It was not clearly erroneous for the trial court to find appellant's claim of confusion unbelievable.

Affirmed.


Footnotes

* Retired judge of the district court, serving as judge of the Minnesota Court of Appeals by appointment pursuant to Minn. Const. art. VI, ' 10.