This opinion will be unpublished and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

C7-96-415

Gary Anton Wilde, petitioner,

Appellant,

vs.

Commissioner of Public Safety,

Respondent.

Filed October 1, 1996

Affirmed

Kalitowski, Judge

Hennepin County District Court

File No. IC473370

Faison T. Sessoms, 840 Midland Square Building, 331 Second Avenue South, Minneapolis, MN 55401 (for Appellant)

Hubert H. Humphrey III, Attorney General, Joel A. Watne, Assistant Attorney General, 200 Capitol Office Building, 525 Park Street, St. Paul, MN 55103-2106 (for Respondent)

Considered and decided by Kalitowski, Presiding Judge, Lansing, Judge, and Willis, Judge.

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

KALITOWSKI, Judge

Appellant Gary A. Wilde challenges his implied consent driver's license revocation. Wilde argues that he did not refuse the chemical testing because he was not given a choice between a blood or urine test. We affirm.

D E C I S I O N

On appeal from a district court's decision to sustain a license revocation, findings of fact by the district court will not be set aside unless clearly erroneous. Lynch v. Commissioner of Pub. Safety, 498 N.W.2d 37, 39 (Minn. App. 1993) (citing State, Dep't of Highways v. Beckey, 291 Minn. 483, 486, 192 N.W.2d 441, 444-45 (1971)). Conclusions of law, however, can be overturned if the district court erroneously construed and applied the law to the facts. Dehn v. Commissioner of Pub. Safety, 394 N.W.2d 272, 273 (Minn. App. 1986).

Under Minnesota law, a law enforcement officer "may direct whether a test shall be of blood, breath, or urine." Minn. Stat. § 169.123, subd. 2(c) (1994). Action may be taken against one who refuses a blood or urine test only if an alternative test was offered. Id. Failure to provide two adequate breath samples constitutes a refusal, unless it is due to physical inability, in which case a blood or urine sample must be provided. Id., subd. 2b(c) (1994); Minn. R. 7502.0430, subpt. 1 (1995). The district court must make findings on whether the failure to provide an adequate sample is due to physical inability, and if so, whether the driver refused to provide a urine or blood sample. Aunan v. Commissioner of Pub. Safety, 361 N.W.2d 907, 909 (Minn. App. 1985).

The district court here correctly relied on Smith v. Commissioner of Pub. Safety, 401 N.W.2d 414 (Minn. App. 1987). In Smith, after the driver failed to provide an adequate breath sample, the officer offered him a blood test without giving him a choice between a blood or urine test. Id. at 415. This court held the driver's failure to provide an adequate breath sample constituted a refusal. Id. at 416 (citing Minn. Stat. § 169.123, subd. 2b(c)). Therefore, the second offer of a blood test was gratuitous and did not require the offer of an alternative test. Id.

Wilde argues his case is different from Smith because he testified at the hearing regarding his physical inability to produce a breath sample. We disagree. The district court did not find Wilde's testimony credible and specifically found Wilde failed to demonstrate he was physically unable to produce an adequate breath sample. This finding is not clearly erroneous.

Wilde also argues that because the officer only offered him a urine test, and did not give him a choice between a blood or urine test after he failed to provide an adequate breath sample, the revocation of his driver's license should be rescinded pursuant to Minn. Stat. § 169.123, subd. 2(c), and Haugen v. Commissioner of Pub. Safety, 389 N.W.2d 222 (Minn. App. 1986). In Haugen, this court held that where a driver is offered only a blood test and is not given a choice between a blood and urine test, as mandated by Minn. Stat. § 169.123, subd. 2(c) (Supp. 1985), the revocation of the driver's license should be rescinded, even if the driver took and failed the blood test. Id. at 223-24.

Wilde's reliance on Haugen is misplaced. Haugen was decided under a prior version of the statute, inapplicable here, that required the driver be given a choice. Workman v. Commissioner of Pub. Safety, 477 N.W.2d 539, 540 (Minn. App. 1991). After Haugen, the legislature removed that requirement from the statute. Id.

Wilde's failure to provide an adequate breath sample constituted a refusal. Therefore, the offer of a urine test was gratuitous, and Wilde was not entitled to a choice between a blood or urine test.

Affirmed.