may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (1996).
STATE OF MINNESOTA
IN COURT OF APPEALS
Stephen Lee Grossoehme, petitioner,
Commissioner of Public Safety,
Filed September 2, 1997
Scott County District Court
File No. C9612374
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 Amundson, Presiding Judge, Norton, Judge, and Peterson, Judge.
Stephen Lee Grossoehme challenges his driver's license revocation arguing that (1) the arresting officer did not have a reasonable basis for stopping his vehicle, (2) his right to counsel was not vindicated, and (3) his test refusal was reasonable. We affirm.
Clarke approached the vehicle, which was driven by appellant Stephen Lee Grossoehme, and asked for identification. Clarke noticed a strong odor of alcohol and observed that Grossoehme had droopy eye lids, blood shot eyes, and very slurred speech. Clarke asked Grossoehme to perform field sobriety tests. After executing two tests, Clarke decided to discontinue testing because Grossoehme was having difficulty standing. When Grossoehme failed a preliminary breath test, Clarke arrested him for DWI.
Grossoehme was taken to the Scott County jail where Clarke read him the implied consent advisory. Grossoehme stated that he wanted to speak with an attorney. Clarke gave Grossoehme a telephone, the yellow and white pages of the telephone book, and Grossoehme's checkbook, which had a telephone number in it. Grossoehme made one or two phone calls. Clarke asked Grossoehme if he was done, and Grossoehme said yes. Clarke asked whether he wanted to make any more calls, and Grossoehme said no.
When Clarke asked Grossoehme to take a breath test, Grossoehme agreed. On his first attempt, Grossoehme did not properly blow into the machine. After being told how to blow into the machine, Grossoehme again failed to properly do so, and the machine did not register. Grossoehme told Clarke that he had trouble blowing into the machine because of his sinus problems. After four minutes the test was done, and Grossoehme was told that his failure to provide an adequate breath sample was considered a refusal. Grossoehme stated he really wanted to take a test. Clarke asked Grossoehme if he would take a blood test. Grossoehme refused, and his driver's license was revoked pursuant to the implied consent law, Minn. Stat. § 169.123. The district court sustained Grossoehme's license revocation.
Grossoehme argues that the initial stop of his vehicle was improper because Clarke made the stop based on a tip from an unidentified informant and there was no information to support a determination that the informant was telling the truth. We disagree.
"[A] police officer may not stop a vehicle without a reasonable basis for doing so." Marben v. State, 294 N.W.2d 697, 699 (Minn. 1980). A stop of a vehicle is lawful if the officer articulates a "particularized and objective basis for suspecting the particular persons stopped of criminal activity." State v. Kvam, 336 N.W.2d 525, 528 (Minn. 1983) (quoting United States v. Cortez, 449 U.S. 411, 417-18, 101 S. Ct. 690, 695 (1981)).
"An actual violation of the Vehicle and Traffic Law need not be detectable. * * * All that is required is that the stop be not the product of mere whim, caprice, or idle curiosity. It is enough if the stop is based upon 'specific and articulable facts which, taken together with rational inferences from those facts, reasonably warrant [the] intrusion.'"
Marben, 294 N.W.2d at 699 (quoting Terry v. Ohio, 392 U.S. 1, 21, 88 S. Ct. 1868, 1880 (1968)).
The justification for the stop need not be based on an officer's own observation of an individual, but may come from information passed on to the officer from citizen informants or other officers. Id.; State v. Cavegn, 294 N.W.2d 717, 721 (Minn. 1980).
An officer is entitled to assess the situation on the basis of "all the circumstances" and may draw inferences and deductions that might well elude an untrained person. State v. Combs, 398 N.W.2d 563, 565 (Minn. 1987).
Clarke was told by the dispatcher that someone reported that there was a drunk driver parked in the McDonald's drive-through lane in a black Ford Bronco with plate number 278 LMV. Moments later, Clarke spotted this vehicle and saw it commit three traffic violations (turn without signaling, illegal turn by crossing into the other lane of traffic, and crossing over the center line). Clarke's own observations established a particularized and objective basis for stopping Grossoehme's vehicle.
2. Right to Counsel
Grossoehme argues that his right to counsel was not vindicated because Clarke did not provide him a telephone book and did not give him a reasonable amount of time to contact an attorney. We disagree.
A driver has the right "to a reasonable opportunity to obtain legal advice before deciding whether to submit to chemical testing" under the implied consent law. Friedman v. Commissioner of Pub. Safety, 473 N.W.2d 828, 835 (Minn. 1991). Whether a person was given a reasonable amount of time to contact counsel is a mixed question of fact and law. Parsons v. Commissioner of Pub. Safety, 488 N.W.2d 500, 501 (Minn. App. 1992). Once the "facts are established, their significance becomes a question of law." Id.; see Kuhn v. Commissioner of Pub. Safety, 488 N.W.2d 838, 840 (Minn. App. 1992) (when facts are undisputed, whether driver was given reasonable amount of time to contact counsel is legal determination), review denied (Minn. Oct. 20, 1992). Police officers have a duty to vindicate the right to counsel. Kuhn, 488 N.W.2d at 842. In determining whether a driver's right to counsel was vindicated, a totality of the facts will be considered. Parsons, 488 N.W.2d at 502.
Grossoehme argues that he was not given a telephone book. But Clarke testified that telephone books were available to Grossoehme, and that Grossoehme was told that he could use the telephone books, and the trial court expressly found Clarke's testimony to be credible. The trial court's finding that Grossoehme was given a telephone book was not clearly erroneous. See Minn.R.Civ.P. 52.01 (trial court's findings will not be reversed unless clearly erroneous, and due regard must be given to the trial court's opportunity to judge the credibility of the witnesses).
Grossoehme argues that he was allowed to use a telephone for only eleven minutes, and this did not give him a reasonable opportunity to contact an attorney before being tested. However, the trial court found that when Clarke asked Grossoehme if he was done making phone calls, Grossoehme said yes, and when Clarke asked Grossoehme whether he wanted to make any more calls, Grossoehme said no. Clarke was not required to give Grossoehme additional time to make phone calls after Grossoehme said that he did not want to make any more calls. Grossoehme's right to counsel was vindicated.
3. Refusal of Testing
Grossoehme argues that because he was physically unable to provide an adequate breath sample, the trial court erred in determining that his refusal to take the breath test was unreasonable. We disagree.
Failure to provide two separate, adequate breath samples for an intoxilyzer test is a refusal, unless the person is physically unable to provide a sample. Minn. Stat. § 169.123, subd. 2b(c) (1996); see Minn.R. 7502.0430, subpt. 1 (1995); see also Aunan v. Commissioner of Pub. Safety, 361 N.W.2d 907, 908-09 (Minn. App. 1985). If an officer determines that a driver who provided an inadequate sample was physically able to provide a sample, and the driver's license is revoked for refusal, the driver may challenge the determination at the implied consent hearing. Carlson v. Commissioner of Pub. Safety, 374 N.W.2d 791, 794 (Minn. App. 1985). The driver must prove the refusal was reasonable because of the driver's physical condition. Benson v. Commissioner of Pub. Safety, 397 N.W.2d 452, 453 (Minn. App. 1986). The issue of physical inability is a question of fact, and the trial court's findings will not be reversed unless clearly erroneous. Burke v. Commissioner of Pub. Safety, 381 N.W.2d 903, 904 (Minn. App. 1986).
The trial court determined that Grossoehme's failure to give two adequate breath samples was not the result of a physical inability. The court concluded that Grossoehme's failure to provide samples was
the result of his decision not to cooperate in the test. Other than [Grossoehme's] own statements he presented no evidence he has a sinus problem or that he had such a problem it would interfere with him giving a breath sample through his mouth. [Grossoehme] apparently had no problem breathing through his mouth on the night he was stopped, at least none reported. Finally, [Grossoehme] was capable of providing a sufficient sample for the PBT earlier that night.
The only evidence of Grossoehme's physical inability was his testimony. The trial court, however, did not believe Grossoehme's testimony. There is no basis for this court to disturb the trial court's finding that Grossoehme was not physically unable to provide an adequate breath sample. See Minn.R.Civ.P. 52.01 (trial court's findings will not be reversed unless clearly erroneous, and due regard must be given to the trial court's opportunity to judge the credibility of the witnesses).