This opinion will be unpublished and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

C3-96-2355

Margaret Venne Black, petitioner,

Appellant,

vs.

Commissioner of Public Safety,

Respondent.

Filed July 8, 1997

Affirmed

Amundson, Judge

Dakota County District Court

File No. CX-96-8890

Jeffrey S. Sheridan, Strandemo & Sheridan, P.A., 2125 Upper 55th Street East, Inver Grove Heights, MN 55077 (for Appellant)

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

AMUNDSON, Judge

Appellant Margaret Venne Black challenges the district court's order sustaining the revocation of her driver's license, arguing that her due process rights were violated during the officer's reading and explanation of the Implied Consent Advisory. We affirm.

FACTS

On July 12, 1996, Minnesota State Highway Patrol Officer Mark Herbranson stopped and subsequently arrested appellant Margaret Venne Black for DWI. After reading Black the Implied Consent Advisory (advisory) and further disclosing Black's right to counsel, Officer Herbranson asked Black if she would submit to a blood test to determine her alcohol concentration. Black's first response was, "I guess, I don't know, ye[a]h." Officer Herbranson requested that Black answer yes or no. Black responded, "I guess so, I don't have a problem with it, I don't know what I am getting into here."

Officer Herbranson explained to Black some of the differences between a field breath test and a blood test for determining alcohol concentration. He stated that the blood test would show an exact reading of Black's blood alcohol content. Officer Herbranson then asked Black again whether she had "any problem taking the blood test." Black responded, "Well, as long as you don't." Officer Herbranson responded by stating that a nurse would take the blood sample. Black said, "If I do not take the blood test, there will be a difference in my situation." Officer Herbranson answered, "Yes, if you, if you refuse to give me a test." Black responded by saying, "Okay, I will take it." Black's alcohol concentration test revealed a result of .10. Her driver's license was revoked pursuant to the implied consent law.

At the implied consent hearing, the district court determined that Black was not misled or confused by the advisory and that Officer Herbranson's reading and explanation of the advisory did not violate her due process rights. The district court concluded that Black was properly advised of her rights and the consequences of taking or refusing chemical testing.

D E C I S I O N

I. Right to Counsel

Because the district court has the opportunity to judge the credibility of the witnesses, the district court's factual findings will not be set aside unless clearly erroneous. See Thorud v. Commissioner of Pub. Safety, 349 N.W.2d 343, 344 (Minn. App. 1984).

Black asserts that Officer Herbranson did not allow her to call an attorney prior to Black taking the blood test. This argument founders for two reasons. First, Officer Herbranson in fact did read Black the relevant portion of the implied consent advisory which states:

Before making your decision about testing, you have the right to consult with an attorney. If you wish to do so, a telephone will be made available to you. If you are unable to contact an attorney, you must make the decision on your own. You must make your decision within a reasonable period of time.

(Emphasis added.) After reading the implied consent advisory, Officer Herbranson asked Black if she understood what he just said. Black stated that she understood the advisory. The officer then asked Black again, "Do you wish to consult an attorney?" and Black replied, "Uhm - inaudible - no." Second, although Black did request to speak to an attorney, that request is irrelevant, not only because it was honored, but also because it occurred after she submitted to the blood test.

We conclude that Black was effectively informed of her right to consult with an attorney prior to submitting to a test. See Friedman v. Commissioner of Pub. Safety, 473 N.W.2d 828, 832 (Minn. 1991) (stating driver had a right to counsel under Minn. Const. art. I, § 6, prior to deciding whether to submit to testing). Black voluntarily waived her right to consult with an attorney prior to testing.

II. Due Process

Black argues that she was misled or confused by the officer's reading and explanation of the advisory and that the advisory, as read, violated her due process rights. This court reviews de novo the district court's application of law. Palme v. Commissioner of Pub. Safety, 541 N.W.2d 340, 344 (Minn. App. 1995), review denied (Minn. 1996).

The second paragraph of the advisory states that "[r]efusal to take a test is a crime." Officer Herbranson only offered Black a blood test. Minnesota Statute § 169.123, subd. 2(c) (1994), states in relevant part:

Action may be taken against a person who refuses to take a blood test only if an alternative test was offered and action may be taken against a person who refuses to take a urine test only if an alternative test was offered.

Black contends that the advisory threatened her with a criminal charge that the commissioner was not authorized to impose. Refusal to take a blood test does not automatically result in a criminal charge. Instead, she asserts, if she would have refused a blood test, she would have been offered an alternative test. Further, she argues that the advisory did not notify her of this choice.

Black relies on McDonnell v. Commissioner of Pub. Safety, 473 N.W.2d 848 (Minn. 1991). At the time McDonnell was decided, the advisory stated that "[i]f testing is refused, your right to drive will be revoked for a minimum period of one year, and you may be subject to criminal penalties." Id. at 850 n.2 (emphasis added). Additionally, at the time of the McDonnell decision, refusal to take an alcohol concentration test, in and of itself, was not a crime.[1] The supreme court rescinded the revocation of the person's license stating that the state should not be allowed to violate an individual's due process rights and obtain evidence under the threat of criminal charges it is not allowed to impose. Id. at 848.

Black argues that her case presents an even more compelling scenario than McDonnell for finding that she was misled because Officer Herbranson told Black that refusal would be a crime. Black further alleges that the officer made erroneous threats of criminal penalties, that the threats were certain and explicit, and that she was coerced and led to believe that refusal to take a blood test would be a crime.

This case is distinguishable from McDonnell in two ways: (1) the advisory has been amended since McDonnell; and (2) Black is not challenging the wording of the advisory as in McDonnell, rather, Black challenges Officer Herbranson's reading and explanation of the advisory. Officer Herbranson read the advisory language verbatim, correctly stating that "[r]efusal to take a test is a crime." The advisory was not misleading because it accurately informed Black of the law. The applicable law, Minn. Stat. § 169.123, subd. 4 (1994), states in relevant part:

Upon certification by the peace officer that there existed probable cause to believe the person had been driving * * * while under the influence of alcohol * * * and that the person refused to submit to a test, * * * shall revoke the person's license * * * for a period of one year.

If a person refuses to take an alcohol concentration test, there is no longer an additional determining factor as to whether the person will be subject to criminal penalties. Refusal to take an alcohol concentration test is, in and of itself, a crime. Minn. Stat. § 169.121, subd. 1a (1994).

This court addressed a similar issue in Workman v. Commissioner of Pub. Safety, 477 N.W.2d 539 (Minn. App. 1991). This court held there that when a driver was offered and agreed to take a blood test, the officer was not required to give the driver the choice of an alternative test. Id. at 540. The failure of the advisory to warn of every possible consequence does not violate fundamental fairness inherent to due process. Catlin v. Commissioner of Pub. Safety, 490 N.W.2d 445, 447 (Minn. App. 1992).

As a practical matter, there is a limit to the amount of information an advisory can relate to an individual arrested for DWI. Minnesota law requires that drivers be allowed to consult with counsel prior to a testing decision to discuss legal ramifications. Catlin, 490 N.W.2d at 447. Confusion would be increased, however, if officers were required to explain that refusal of a urine or blood test is not really a refusal, but refusal of the alternative test is a refusal. Black's argument would mandate a long and complex advisory. Due process does not require the advisory to describe each legal eventuality presented to an individual under arrest for DWI.

Affirmed.

[ ]1 Minn. Stat. § 169.121, subd. 1a (Supp. 1989) only imposed criminal penalties on individuals who refused to submit to a chemical test for alcohol content if the person's license had been revoked once within the past five years or two or more times within the past ten years.