This opinion will be unpublished and

may not be cited except as provided by

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




State of Minnesota,



Brian Mark Thompson,


Filed August 11, 1998


Kalitowski, Judge

Pope County District Court

File No. T197000133

Hubert H. Humphrey III, Attorney General, 1400 NCL Tower, 445 Minnesota Street, St. Paul, MN 55101; and

Belvin Doebbert, Pope County Attorney, Todd Roth, Assistant County Attorney, 605 S. Lakeshore Drive, #1000, Glenwood, MN 56334 (for respondent)

Peter J. Timmons, Metro Office Park, 2850 Metro Drive, #419, Bloomington, MN 55425 (for appellant)

Considered and decided by Kalitowski, Presiding Judge, Randall, Judge, and Schumacher, Judge.



Appellant Brian Mark Thompson argues that because he was originally charged with and pleaded guilty to snowmobiling while under the influence of alcohol, his due process rights were violated when he was given the motor vehicle implied consent advisory and not the snowmobile operator implied consent advisory. We reverse.


"Conclusions of law will be overturned only upon a determination that the trial 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).

"An intoxilyzer test obtained through misleading language in the implied consent advisory * * * is a violation of due process." State v. Stumpf, 481 N.W.2d 887, 889-90 (Minn. App. 1992). The supreme court has determined that when the implied consent advisory "permitted police to threaten criminal charges the state was not authorized to impose," it violated the defendant's due process rights. McDonnell v. Commissioner of Pub. Safety, 473 N.W.2d 848, 855 (Minn. 1991).

The United States Supreme Court has also recognized that due process does not permit those who are perceived to speak for the state to mislead individuals as to either their legal obligations or the penalties they might face should they fail to satisfy those obligations.

Id. at 854.

Here, the police officer admits that when he arrived at the hospital to talk to appellant after his snowmobile accident, he intended to give appellant the snowmobile operator implied consent advisory. Because he was unable to find this advisory, the officer instead read appellant the motor vehicle consent advisory, changing the words "motor vehicle" to "snowmobile." Under the law at that time, the two advisories differed in that in the snowmobile advisory, the penalty to refuse the test was a $500 civil penalty and a one-year prohibition from driving a snowmobile, while in the motor vehicle advisory, the penalty for refusal was a crime. Minn. Stat. § 84.911, subd. 3(2) (1996) (repealed 1997); Minn. Stat. § 169.123, subd. 2(b)(2) (1996).[1]

On February 19, 1997, the state filed its initial complaint against appellant, charging him only with snowmobiling while under the influence of alcohol (SUI). Only after appellant filed a motion to dismiss, claiming he did not receive an implied consent advisory under the snowmobiling statute, did the state file an amended complaint, adding the charge of driving a motor vehicle while under the influence of alcohol (DUI). Further, when appellant agreed to a plea bargain and pleaded guilty to SUI, the state dropped the DUI charge.

Although the state attempted to correct the misleading advisory by subsequently amending the complaint to include a charge that matches the advisory given, we conclude appellant's due process rights were violated because: (1) the state did not choose to charge appellant with DUI at the time of the offense; and (2) appellant ultimately pleaded guilty to a charge for which no appropriate implied consent advisory was given.

The district court properly stated:

If this case was an implied consent case involving only the SUI charge, the Court would have to grant [appellant's] motion to suppress the blood test on due process grounds because [appellant] was not properly informed of the civil sanctions he faced if he refused to consent to the blood test.

(Emphasis added.) However, we disagree with the district court's determination that the after-the-fact amendment of the complaint made this both a DUI and an SUI case. Because we conclude the state violated appellant's due process rights by improperly reading him the DUI implied consent advisory but charging him with SUI, we reverse appellant's conviction and suppress the blood test results.


[1] The statutes no longer provide for a different implied consent advisory for snowmobile operators who are under the influence. See 1997 Minn. Laws 1st Spec. Sess. ch. 2, § 69 (repealing Minn. Stat. § 84.911, subd. 3 (1996)). For violations occurring after January 1, 1998, persons who operate a snowmobile under the influence of alcohol are subject to the testing requirements (including criminal sanctions for refusal) of the motor vehicle provisions of Minn. Stat. § 169.123 (1996). Minn. Stat. § 84.91, subd. 1(c) (Supp. 1997). Further, a person "who refuses to comply with a lawful request to submit to testing under section 169.123, shall be prohibited from operating the snowmobile * * * for a period of one year." Id.