This opinion will be unpublished and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

CX-95-2696

State of Minnesota,

Respondent,

vs.

Ethan Enoch Hoover,

Appellant.

Filed November 12, 1996

Affirmed

Foley, Judge

[*]

Scott County District Court

File No. 94-11554

Hubert H. Humphrey, III, Attorney General, 1400 NCL Tower, 445 Minnesota Street, St. Paul, MN 55101; Thomas J. Harbinson, Scott County Attorney, Susan K. McNellis, Assistant County Attorney, 206 Scott County Courthouse, 428 S. Holmes Street, Shakopee, MN 55379 (for Respondent)

Samuel A. McCloud, Kelly Vince Griffitts, Suite 1000, Circle K, Box 216, Shakopee, MN 55379 (for Appellant)

Considered and decided by Harten, Presiding Judge, Schumacher, Judge, and Foley, Judge.

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

FOLEY, Judge

Appellant Ethan Enoch Hoover challenges his conviction of criminal vehicular operation, contending that the trial court erred in refusing to suppress evidence of his blood alcohol content. Appellant argues that the officer, by taking a blood test without reading him the implied consent advisory, violated his constitutional right to counsel and due process and his statutory right to counsel. We disagree and affirm.

FACTS

On April 11, 1994, shortly before 5:00 a.m., appellant was involved in an accident. The state charged appellant with driving while under the influence (DWI) and criminal vehicular operation, alleging that he ran a stop sign, hit another vehicle broadside, and caused serious injury to its driver, Ray Weierke, Jr. Appellant was also injured in the accident.

By the time Sgt. Douglas Thooft of the Minnesota State Patrol arrived at the scene of the accident, appellant and Weierke had been taken to the hospital. Thooft observed that both vehicles were extensively damaged; he also saw beer cans in appellant's vehicle. After investigating the scene, Thooft concluded that appellant had failed to stop. Another officer who had spoken with appellant reported to Thooft that appellant's eyes were bloodshot and his breath smelled of alcohol.

Thooft ordered Officer Greg Tucci to go to the hospital and obtain blood samples from both drivers. Thooft testified that he ordered the blood tests, as a matter of policy, because the accident was "serious." Tucci spoke to a doctor about obtaining a blood sample from each driver and stood by while a technician drew blood samples. He did not speak to appellant, did not explain why the blood test was being conducted, and did not read appellant the implied consent advisory. Appellant's blood sample resulted in a blood test of .11 blood alcohol concentration.

After completing his observations at the collision scene, Thooft went to the hospital where he spoke with appellant. He asked to see appellant's driver's license and inquired about the accident. Thooft did not arrest appellant nor did he read him the Miranda warning.

The court denied appellant's motion to suppress the blood tests. Appellant waived his right to a jury trial and entered a conditional guilty plea pursuant to State v. Lothenbach, 296 N.W.2d 854, 857 (Minn. 1980). He pleaded guilty to committing vehicular injury while having an alcohol concentration of .10. The remaining charges against appellant were dismissed pursuant to a plea negotiation. The court ordered a 50-month sentence and stayed the sentence to allow this appeal. Appellant does not challenge the court's finding that probable cause existed to support the officer's request for a sample of appellant's blood.

D E C I S I O N

The parties do not dispute the facts. Accordingly, the trial court's order on the suppression issue poses a question of law that this court reviews de novo. State v. Schauer, 501 N.W.2d 673, 674 (Minn. App. 1993).

Appellant argues that the blood testing was done at a "critical stage" and, therefore, triggers his constitutional right to counsel under Friedman v. Commissioner of Pub. Safety, 473 N.W.2d 828, 835 (Minn. 1991). The state argues that Friedman does not apply here. We agree. Friedman was a license revocation proceeding, whereas license revocation prior to trial is not an issue here.

In a case that is directly on point, this court reviewed Friedman and held that the "right to counsel does not attach to the investigatory stage of chemical testing in a criminal prosecution." State v. Nielsen, 530 N.W.2d 212, 215 (Minn. App. 1995), review denied (Minn. June 14, 1995). As here, Nielsen was involved in a car accident, blood testing occurred at the hospital, and the officer did not read Nielsen his rights or invoke the civil implied consent statute. Id. at 213-14.

Numerous other cases have held that evidence of chemical testing is admissible in a criminal prosecution even if the police officer made no attempt to read the implied consent advisory. See, e.g., Tyler v. Commissioner of Pub. Safety, 368 N.W.2d 275, 281 (Minn. 1985) (where officer failed to comply with implied consent law, results of chemical analysis could be used in prosecution for DWI, but could not serve as basis for revocation of license pursuant to implied consent law); Schauer, 501 N.W.2d at 676-77 (same).

Appellant makes the novel argument that his right to counsel attached at the time of testing, because the failure to allow him an opportunity to consult with counsel vitiated his right to an independent chemical test. This argument is not persuasive. The right to additional testing provided in the implied consent statute does not apply here, because the officer did not invoke that statute to obtain the blood sample from appellant.

Appellant argues that to mount a defense properly, he needed to obtain an independent chemical test to refute the blood test that the state obtained. Appellant claims, therefore, that the constitution guarantees him a right to an independent chemical test and consultation with an attorney to vindicate this right. To support this claim, appellant cites Friedman, 473 N.W.2d at 835, and United States v. Ash, 413 U.S. 300, 93 S. Ct. 2568 (1973). Again, appellant's argument fails.

The circumstances here do not provide the sort of "dangers" that require an expansion of the constitutional right to counsel. See Ash, 413 U.S. at 311, 93 S. Ct. at 2574 (noting that Court "has expanded the constitutional right to counsel only when new contexts appear presenting the same dangers that gave birth initially to the right itself"). In Friedman, 473 N.W.2d at 835, the supreme court provided for a right to counsel under the Minnesota Constitution that is more expansive than the right afforded under the Federal Constitution. But Friedman involved pretrial license revocation, whereas no pretrial sanction is involved here. Appellant would have this court expand his constitutional rights to include circumstances where his decision could not result in immediate license revocation. We explained in Nielsen:

[T]he right to counsel attached in Friedman because the implied consent law reclassified a traditional criminal offense as a civil offense, and immediately imposed severe sanctions before a jury trial and without benefit of counsel.

Nielsen, 530 N.W.2d at 215 (citing Friedman, 473 N.W.2d at 832-37). But where, as here, the officer does not invoke the implied consent statute and its resulting pretrial consequences, a constitutional right to counsel does not attach. See id. (where process of chemical testing is "merely an investigatory stage which necessarily preceded the decision to prosecute" and there has been no detention or arrest, right to counsel has not yet attached); see also Tyler, 368 N.W.2d at 281 (holding evidence of chemical testing admissible in criminal prosecution even if police officer made no attempt to read suspect implied consent advisory).

Appellant next argues that a 1992 amendment to the implied consent advisory demonstrates the legislature's intent to afford a right to counsel to all drivers suspected of criminal vehicular operation, whether or not the state seeks immediate license revocation. We disagree. The implied consent statute does not contain language that requires an officer to invoke the statute whenever circumstances allow for its use. The supreme court has repeatedly held that an officer need not invoke the implied consent statute in criminal vehicular operation investigations. State v. Speak, 339 N.W.2d 741, 744 (Minn. 1983); State v. Aguirre, 295 N.W.2d 79, 81 (Minn. 1980); Nielsen, 530 N.W.2d at 214-15. The 1992 amendment did not alter the officer's discretion to invoke the statute. The 1992 amendment streamlined the advisory, deleting language that advised the driver of the right to an independent test and detailed the sanctions for refusing to test and for failing the test. 1992 Minn. Laws ch. 570, art. 1, § 16 (amending Minn. Stat. § 169.123, subd. 2(b)). The amendment added the following advisory to the driver:

[I]f the peace officer has probable cause to believe the person has violated the criminal vehicular homicide and injury laws, that a test will be taken with or without the person's consent[.]

Id. This amendment merely informs the driver of existing case law. See, e.g., Speak, 339 N.W.2d at 744 (chemical analysis of blood is admissible in prosecution for criminal vehicular operation resulting in death or injury even if obtained involuntarily or without compliance with implied consent statute); State v. Condon, 497 N.W.2d 272, 274-75 (Minn. App. 1993) (blood test taken during investigation of criminal vehicular operation admissible even though defendant refused testing).

Finally, appellant claims that the officer's failure to invoke the statute here was arbitrary and capricious and denied appellant equal protection of the law. Discriminatory administration of a law that is otherwise nondiscriminatory violates equal protection. State v. Lutsen Resorts, Inc., 310 N.W.2d 495, 497 (Minn. 1981).

Appellant contends the officer based his decision not to invoke the implied consent law on some unexplained determination that the accident was "serious." To the contrary, the record demonstrates that the officer considered evidence indicating appellant was intoxicated when he failed to obey a stop sign and struck Weierke's vehicle, causing him severe head injuries. Accordingly, the officer had probable cause to believe that appellant had committed a criminal vehicular offense resulting in injury. Because appellant had no right to refuse chemical testing under these circumstances, the reading of an implied consent advisory would have been a "superfluous act" in relation to criminal proceedings. Condon, 497 N.W.2d at 275. Under similar circumstances, we determined that an officer's decision not to read the implied consent advisory to the driver was not arbitrary where the officer had reason to believe the driver had been involved in an automobile accident in which another person was injured. Nielsen, 530 N.W.2d at 214.

The officer had probable cause to believe appellant had committed a criminal vehicular offense resulting in injury. Under these circumstances, the officer did not violate appellant's rights when he directed the hospital to draw a sample of appellant's blood without reading appellant the implied consent advisory. The trial court did not err when it denied appellant's motion to suppress evidence of the blood test.

Affirmed.

[ ]* Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to Minn. Const. art. VI, § 10.