This opinion will be unpublished and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

C8-96-2125

Richard Roy Kivi, petitioner,

Appellant,

vs.

Commissioner of Public Safety,

Respondent.

Filed July 1, 1997

Affirmed

Peterson, Judge

St. Louis County District Court

File No. C396600843

Robert M. Kaner, Robert M. Kaner, P.A., 508 Alworth Building, 306 West Superior Street, Duluth, MN 55802 (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 (for Respondent)

Considered and decided by Norton, Presiding Judge, Peterson, Judge, and Amundson, Judge.

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

PETERSON, Judge

In this implied consent case, Richard Kivi argues the district court erred in determining that he refused to submit to a chemical test. We affirm.

FACTS

Appellant Richard Kivi petitioned for judicial review of the revocation of his driver's license for refusal to take a chemical test. At the review hearing, Officer Steven Peterson testified as follows: Peterson reported to the scene of a one-car automobile accident and saw a pickup truck with severe front-end damage lying upside-down off the road. Kivi and the person who had reported the accident were at the scene. As Peterson started toward them, Kivi made eye contact with him and started walking away from him toward the woods. Kivi stopped when Peterson asked him to do so.

Peterson asked Kivi about his injuries. Kivi said he had no injuries other than a cut on his chin. Kivi said another person was with him in the truck, but he did not name that person or tell Peterson where that person was. Kivi responded to most of Peterson's questions by saying he did not know or by giving indirect answers. Kivi, however, denied driving or owning the truck. During Peterson's conversation with Kivi, they stood about one to two feet apart. Peterson noticed a strong odor of alcohol on Kivi's breath, that Kivi's eyes were bloodshot and watery, and that Kivi's speech was very slurred.

Peterson found documents in the truck indicating Kivi was its owner. Peterson talked to the person who had reported the accident and called the bar where Kivi had been before the accident. Peterson then concluded that Kivi had been driving the truck and that Kivi was intoxicated.

Peterson read Kivi the implied consent advisory at the hospital. Peterson asked Kivi if he understood the advisory, and Kivi replied that he was not driving. For about a minute, Peterson continued to ask Kivi whether he understood the advisory, and Kivi continued to respond that he was not driving. Kivi never directly answered whether he understood the advisory and never asked to call an attorney. Kivi was fully conscious at this time, and no medical personnel were present. It appeared to Peterson that Kivi was coherent and comprehended what Peterson said and was never incapable of understanding or responding to a question. Peterson saw no indication that Kivi had a head injury. When Kivi remained adamant about answering the questions with the statement that he was not driving, Peterson concluded the advisory and indicated that Kivi had refused the test.

Peterson later talked with the emergency room doctor and was told that Kivi would be held overnight for observation. The doctor did not indicate that Kivi had any severe injuries and said only that the left side of Kivi's face was bruised, and he had stitches in his chin.

Kivi introduced his medical records and the deposition of his treating doctor but called no witnesses. In the deposition, Kivi's doctor said that when he removed Kivi's stitches a few days after the accident, Kivi complained of a funny feeling in his ears, memory loss, and headaches. An examination showed Kivi had a perforated eardrum. The doctor said that this injury suggested Kivi had received a blow to the head, that the blow would have had to have been significant to rupture an eardrum, that the blow could have given Kivi a concussion, and that the concussion could have rendered Kivi unable to understand the advisory or to respond appropriately. The doctor said it was reasonable to assume the rupture was caused by the accident. But the doctor agreed that a person with a concussion was not necessarily unconscious or incapable of understanding questions.

Kivi's emergency room records showed he denied having any head or neck injuries or head, scalp, or neck pain. The report also stated that Kivi had no visible scalp or head trauma and his ears were unremarkable bilaterally. Hospital records from later in the day stated that Kivi still denied having a headache or blurry vision. X-rays showed no abnormalities or broken bones.

The district court sustained the revocation of Kivi's license. The court found that Peterson had probable cause to believe Kivi was driving the truck, that Kivi was read the implied consent advisory, and that Kivi's response constituted a refusal. The court found that at the time of the refusal, Kivi "was sufficiently alert and cognizant and medically able to consent or refuse to submit to the test."

D E C I S I O N

A district court's findings of fact will not be reversed on appeal unless clearly erroneous. Lynch v. Commissioner of Pub. Safety, 498 N.W.2d 37, 39 (Minn. App. 1993). A district court's conclusions of law, however, will be overturned if the 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).

Anyone who drives a motor vehicle in Minnesota consents to a chemical test to determine the presence of alcohol. Minn. Stat. § 169.123, subd. 2(a) (1994). Refusal to take the test results in revocation of the person's driver's license. Id., subd. 4 (1994). But anyone

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.

Id., subd. 2c (1994).

A finding of incapacity depends on a record of circumstances such that the reviewing court "is left with a 'firm conviction' that the driver was incapable of making a reasoned refusal."

Heuton v. Commissioner of Pub. Safety, 541 N.W.2d 361, 363 (Minn. App. 1995) (quoting Thornton v. Commissioner of Pub. Safety, 384 N.W.2d 606, 608 (Minn. App. 1986)).

To determine whether a person is incapable of refusal, the officer must

make the factual determination as to whether the driver's injuries had rendered him unconscious or disoriented to the extent that he could not make a rational choice whether to refuse or take the test.

Villeneuve v. Commissioner of Pub. Safety, 417 N.W.2d 304, 306 (Minn. App. 1988). "The criteria is the extend of apparent injuries, and where manifest injuries have been great, the driver has prevailed." Id. at 307. We must review the officer's determination based on facts known to the officer at the time the implied consent advisory was given. Id. at 308.

Kivi argues that the medical evidence he submitted shows he suffered a significant head injury in the accident and that this condition, coupled with the officer's failure to read the questions at the end of the advisory, shows he did not refuse. We disagree. The medical evidence offered by Kivi was too speculative to support his incapacity claim because the doctor merely said it was possible that Kivi had suffered a concussion and possible that the concussion had hindered his ability to understand. Evidence in the record shows that on the night of the accident, Kivi was able to recognize Peterson as a police officer, to try to walk away from him at the accident scene, and to deny driving. Kivi was conscious and ambulatory. He did not have any visible injuries except for a cut and a bruise, and he denied having any other injuries. The emergency room staff found no other injuries. This evidence leaves us with a firm conviction that Kivi was capable of making a reasoned choice whether to refuse the test.

Further, Kivi's actions constituted a refusal. A refusal may be communicated by words or acts. Anderson v. Commissioner of Pub. Safety, 379 N.W.2d 678, 681 (Minn. App. 1986). Peterson read the body of the advisory and stopped only after Kivi failed to indicate whether he understood the advisory and repeatedly said he was not driving. Kivi's repeated, nonresponsive answers to Peterson's questions constituted a refusal and allowed Peterson to end the reading of the advisory. Although it would have been preferable for Peterson to have continued reading all the questions on the advisory, the failure to read those questions did not violate Kivi's rights or negate the fact that his actions constituted a refusal. See Holtz v. Commissioner of Pub. Safety, 340 N.W.2d 363, 364-66 & n.3 (Minn. App. 1983) (although it would have been preferable to have read questions on implied consent advisory, unasked questions repeated information already read to driver and ending of advisory reading when driver refused to say whether he understood advisory did not violate his rights).

Affirmed.