This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (1996).

STATE OF MINNESOTA

IN COURT OF APPEALS

C1-96-1107

Thomas Allen Thurman, petitioner,

Appellant,

vs.

Commissioner of Public Safety,

Respondent.

Filed December 31, 1996

Affirmed

Peterson, Judge

Hennepin County District Court

File No. IC473698

Daniel Guerrero, Elizabeth Olney, Meshbesher & Spence, Ltd., 1616 Park Avenue, Minneapolis, MN 55404 (for Appellant)

Hubert H. Humphrey, III, Attorney General, Steven H. Alpert, Assistant Attorney General, 525 Park Street, Suite 200, St. Paul, MN 55103

Considered and decided by Parker, Presiding Judge, Peterson, Judge, and Willis, Judge.

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

PETERSON, Judge

Thomas Thurman appeals from the district court's order sustaining the revocation of his driver's license pursuant to the implied consent law. We affirm.

FACTS

Thurman was arrested for driving while under the influence and an officer read the implied consent advisory to him at the chemical testing unit of the Minneapolis Police Department. Thurman stated that he wanted to consult with an attorney and spoke to two attorneys. After 23 minutes, he indicated he was ready to proceed, although the officer told him he had seven more minutes. The officer then asked him to take a breath test, and Thurman responded he would take any test at the hospital. The officer informed him the testing would be done at the chemical testing unit and that they would not be going to the hospital. The officer advised him to use his remaining time to talk to an attorney, but Thurman did not do so. The officer again asked Thurman to take a test, and Thurman again replied that on the advice of counsel he would take any test at the hospital. The officer deemed this answer to be nonresponsive and a refusal.

After Thurman's license was revoked for refusing testing, he petitioned for judicial review. Thurman testified that after he was released by the police, he contacted the second attorney from whom he had sought advice and learned he had misunderstood the attorney's advice and should have taken any tests the officer requested, in addition to asking for a blood test. He testified that he never specifically refused to take the breath test. The district court concluded Thurman refused testing without reasonable grounds and sustained the revocation.

D E C I S I O N

Whether a person refuses testing or had reasonable grounds for doing so are questions of fact for the district court, which will be reversed only if clearly erroneous. State, Dep't of Highways v. Beckey, 291 Minn. 483, 486-87, 192 N.W.2d 441, 444-45 (1971). The legal significance of undisputed facts may be a question of law. Haug v. Commissioner of Pub. Safety, 473 N.W.2d 900, 902 (Minn. App. 1991). Conclusions of law will be overturned if the district court has erroneously construed and applied the law to the facts of the case. Dehn v. Commissioner of Pub. Safety, 394 N.W.2d 272, 273 (Minn. App. 1986).

A driver's license will be revoked if the driver refuses to take a test pursuant to the implied consent law. Minn. Stat. § 169.123, subd. 4 (1994). Several Minnesota cases have addressed fact situations where a driver did not specifically refuse to take a test, but instead did not respond directly to a test request. In Gabrick v. Commissioner of Pub. Safety, 393 N.W.2d 23, 25 (Minn. App. 1986), a driver's failure to respond to a testing request constituted a refusal. A refusal also occurred when an officer gave the driver a choice between a blood and urine test, and the driver did not specifically choose one of the tests and imposed her own conditions on the blood test. Mahanke v. Commissioner of Pub. Safety, 395 N.W.2d 437, 438 (Minn. App. 1986).

In this case, the district court concluded Thurman refused testing when he agreed to take any test at the hospital, despite being told by the officer that they were not going to the hospital. Thurman argues that because he never specifically refused to submit to testing and instead affirmatively indicated he would do so at the hospital, he did not refuse. We disagree. Thurman did not accept the offer of a breath test at the chemical testing unit and instead imposed his own condition on the test--that it be performed at the hospital. This constitutes a refusal to submit to testing. See id.

Thurman next argues that if he did refuse to submit to testing, the refusal was reasonable. A driver in an implied consent proceeding may assert as an affirmative defense that a refusal to submit to testing was based on reasonable grounds. Minn. Stat. § 169.123, subd. 6 (1994); Steinbrenner v. Commissioner of Pub. Safety, 413 N.W.2d 557, 559 (Minn. App. 1987). A driver's claim that a refusal was reasonable because he was merely following the advice of counsel will succeed only if the police misled a driver to believe the refusal was reasonable or if police made no attempt to explain to a confused driver that regardless of what his lawyer said, he must permit testing or lose his license. State, Dep't of Pub. Safety v. Lauzon, 302 Minn. 276, 277, 224 N.W.2d 156, 157 (1974). Incorrect legal advice does not excuse a refusal to submit to testing. Haug, 473 N.W.2d at 902.

The district court concluded that misunderstanding the advice he received from two attorneys did not give Thurman reasonable grounds to refuse. Thurman contends the refusal was reasonable because the officer made no attempt to facilitate his request to be tested at the hospital or to clear up his confusion regarding his testing obligations and because the officer failed to inform him that despite the advice of counsel, he was obligated to take a test at the chemical testing unit or lose his license.

The officer gave Thurman an opportunity to speak to an attorney again after he refused on the basis of his misunderstanding of counsel's advice and also informed him that any testing would have to be done at the chemical testing unit rather than at the hospital. There is no requirement that the officer allow Thurman to take the breath test at the hospital. See Minn. R. 7502.0400 - 0430 (1995) (rules for administering and interpreting breath tests for intoxication). Under these facts, Thurman's refusal was not reasonable. The district court properly sustained the revocation of his driver's license for refusing testing.

Finally, Thurman requested oral argument but later waived this request. Counsel for respondent appeared at the time scheduled for argument and made an oral request that sanctions be imposed for failing to provide timely notice of the waiver. However, no written motion was filed. Minn. R. Civ. App. P. 127 provides that an application for an order or other relief shall be made by serving and filing a written motion. The rule also provides an opportunity for any party to file a response. Because no written motion was served and filed, we will not consider the oral request for sanctions.

Affirmed.