may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (1996).
STATE OF MINNESOTA
IN COURT OF APPEALS
Todd Rice, petitioner,
Commissioner of Public Safety,
Filed October 20, 1998
Dakota County District Court
File No. C2-97-15603
Hubert Humphrey III, Attorney General, Sean McCarthy, Assistant Attorney General, 525 Park Street, Suite 200, St. Paul, MN 55103 (for respondent)
Considered and decided by Willis, Presiding Judge, Kalitowski, Judge, and Amundson, Judge.
Appellant driver seeks reinstatement of his driving privileges, challenging the finding that he refused an Intoxilyzer test and that his refusal was unreasonable. We affirm.
Rice argues that he had chewing tobacco in his mouth the entire night and that he was afraid the tobacco would skew an Intoxilyzer test. At trial, Officer Jensen stated that he did not notice if Rice had tobacco in his mouth at any time. He further testified he never checked Rice's mouth for any substance and he never asked why Rice wanted to wash his mouth out. Additionally, Rice never told the Officer why he wanted to rinse his mouth and he never explained that he was chewing tobacco.
In an implied consent proceeding, a petitioner may assert as an affirmative defense that refusal to take the alcohol concentration test was reasonable. Minn. Stat. § 169.123, subd. 6(c) (Supp. 1997). A refusal may be considered reasonable if the police have misled a driver into believing a refusal would be reasonable, or if the police have made no attempt to explain to a confused driver his obligations under law. State, Dep't of Pub. Safety v. Lauzon, 302 Minn. 276, 277, 224 N.W.2d 156, 157 (1974). The district court found that Officer Jensen had informed Rice of his rights and the consequences of taking or refusing the sobriety test. The court further determined that Rice understood the advisory and purpose of the test.
Rice does not argue that he was confused by the advisory or by the officer, only that because he was chewing tobacco all day, he should have been allowed to rinse his mouth prior to taking an Intoxilyzer test. As such, this is not a situation where test results are rendered dubious because of the presence of tobacco during specimen sampling. Rather, the issue is whether Rice, by conditioning his compliance, refused the test and if so, that refusal was reasonable. Rice does not claim that he misunderstood his rights or that the officer confused him. Rice never indicated to the officer that he was chewing tobacco at the time the test was made available. Additionally, he never questioned the officer about the possibility of skewed test results if he took the test while chewing tobacco. We agree that Rice unreasonably withheld his consent to test and the revocation of his driving privileges was properly sustained.