STATE OF MINNESOTA

IN COURT OF APPEALS

A03-945

State of Minnesota,
Respondent,

vs.

Thomas Dobis,
Appellant.

Filed July 6, 2004

Affirmed

Wright, Judge

Mille Lacs County District Court

File No. K3-02-924

John M. Stuart, State Public Defender, Ann McCaughan, Assistant State Public Defender, 2221 University Avenue Southeast, Suite 425, Minneapolis, MN 55414 (for appellant)

Mike Hatch, Attorney General, Darren Dejong, Assistant Attorney General, 1800 NCL Tower, 445 Minnesota Street, St. Paul, MN 55101; and

Janice S. Kolb, Mille Lacs County Attorney, Courthouse Square, 525 Second Street Southeast, Milaca, MN 56353 (for respondent)

Considered and decided by Randall, Presiding Judge; Kalitowski, Judge; and Wright, Judge.

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

WRIGHT, Judge

Appellant challenges the district court’s denial of his motion to dismiss the charge of first-degree refusal to submit to chemical testing. Appellant argues that, when the police officer did not repeat the implied-consent advisory at the time that the officer offered appellant the option of taking a blood test, the officer failed to comply with the implied-consent law. We affirm.

FACTS

Milaca Police Officer Josh Halberg was on a ride-along with Minnesota State Patrol Trooper Dennie Bloch when Bloch attempted to stop appellant Thomas Dobis for speeding. Dobis refused to pull over. Instead, he pulled his vehicle into a parking lot, backed it into Bloch’s squad car, and then fled on foot. After locating Dobis, Bloch arrested him for speeding. During the arrest, Halberg saw a pack of cigarettes fall from Dobis’s front shirt pocket. When Halberg recovered the pack, he noticed a small baggie containing a pink, rock-like substance inside, which Halberg believed to be methamphetamine.

While transporting Dobis to the Mille Lacs County Jail, Bloch noted that Dobis emitted a strong odor of alcohol, his eyes were bloodshot and watery, and his speech was slurred. Bloch requested that Dobis submit to a preliminary breath test, but Dobis refused. At 8:25 p.m., Bloch read Dobis the implied-consent advisory, pursuant to Minn. Stat. § 169A.51, subd. 2 (2002). Dobis stated that he understood the advisory and wanted to speak with an attorney. A phone and several phone books were provided to Dobis, who left a message with an attorney. After receiving no reply from the attorney, Bloch requested that Dobis submit to a urine test at 9:11 p.m. Dobis refused. Bloch then read Dobis a Miranda advisory and began processing the implied-consent form. At approximately 9:30 p.m., Bloch asked Dobis if he would submit to a blood test. Dobis refused to submit to blood testing, but agreed to submit to a breath test. Bloch declined to administer a breath test, believing that Dobis had drugs in his system that would not be detected by a breath test.

Dobis was charged with several offenses including first-degree test refusal, a violation of Minn. Stat. § 169A.20, subd. 2 (2002). Dobis moved to dismiss the test refusal charge on the grounds that (1) Bloch did not request a blood test and a urine test contemporaneously, and (2) Bloch did not offer the implied-consent advisory before offering the blood test. The district court concluded that the statutory requirements of the implied-consent law were satisfied and denied the motion. The parties agreed to submit the case to the district court on stipulated facts under the procedure set forth in State v. Lothenbach, 296 N.W.2d 854 (Minn. 1980). The district court found Dobis guilty of first-degree test refusal, and this appeal followed.

D E C I S I O N

When the facts are undisputed, we decide whether the district court erred in applying the law to the facts of the case. Dehn v. Comm’r of Pub. Safety, 394 N.W.2d 272, 273 (Minn. App. 1986). We review de novo issues of statutory interpretation. Houston v. Int’l Data Transfer Corp., 645 N.W.2d 144, 149 (Minn. 2002).

Dobis argues that Bloch failed to comply with the implied-consent procedure when Bloch neglected to repeat the implied-consent advisory before offering Dobis the blood test. Minnesota appellate courts “have prescribed the rights of a person under the implied-consent law within the framework of reasonableness.” Hansen v. Comm’r of Pub. Safety,393 N.W.2d 702, 705 (Minn. App. 1986). Under the implied-consent law, the officer may direct whether the breath, blood, or urine is to be tested. Minn. Stat. § 169A.51, subd. 3 (2002). Because a person may have a reasonable aversion to giving a blood or urine sample, however, “[a]ction may be taken against a person who refuses to take a blood [or urine] test only if an alternative test was offered.” Id.; Franko v. Comm’r of Pub. Safety, 432 N.W.2d 469, 472 (Minn. App. 1988). If an officer directs that the test be of blood or urine, a driver must either take a blood test, take a urine test, or refuse to take a test. Mahanke v. Comm’r of Pub. Safety, 395 N.W.2d 437, 438 (Minn. App. 1986). But refusal of a urine test after refusal of a blood test, or vice versa, constitutes actionable refusal under the implied-consent law. State v. Hagen,529 N.W.2d 712, 714 (Minn. App. 1995); Lynch v. Comm’r of Pub. Safety, 498 N.W.2d 37, 39 (Minn. App. 1993).

The purpose of the implied-consent advisory is to inform the driver of the serious consequences of his or her refusal to submit to testing. See Nyflot v. Comm’r of Pub. Safety,369 N.W.2d 512, 517 & n.3 (Minn. 1985). An officer is required to give only the information mandated under the implied-consent law. State v. Gross, 335 N.W.2d 509, 510 (Minn. 1983). Once the implied-consent advisory has been given, an officer need not repeat the implied-consent advisory when requesting an alternate test. State v. Fortman, 493 N.W.2d 599, 601 (Minn. App. 1992); Hansen, 393 N.W.2d at 705.

Dobis does not argue that Bloch failed to offer alternative tests or that Bloch misled him to believe that refusing to test was reasonable. Rather, Dobis argues that he forgot the consequences of refusing to test within the one-hour time span between the initial reading of the implied-consent advisory and the offer of a blood test, thereby creating a need for Bloch to repeat the advisory with each testing request.

To the contrary, in Fortman and Hansen, we determined that “neither the statute nor relevant case law requires a re-reading of the entire implied-consent advisory before an alternative sample is requested.” Fortman,493 N.W.2d at 601 (affirming revocation where defendant was given two readings of the implied-consent advisory but the advisory was not read in its entirety during the second reading); Hansen,393 N.W.2d at 705 (reversing the district court’s determination that the officer needed to repeat the implied-consent advisory upon offering alternative tests).

The district court correctly concluded that Bloch fulfilled the requirements of the implied-consent law. Dobis read the implied-consent advisory once prior to requesting the tests, thereby informing Dobis of the consequences of refusing to test. Moreover, Dobis stated to Bloch that he understood the advisory, and Dobis did not ask any questions regarding the consequences of test refusal after the second request. Accordingly, Bloch complied with the requirements of the implied-consent law.

Dobis also asserts that he was improperly convicted of test refusal because, although he initially refused to take a preliminary breath test (PBT) during his transport to the jail, he subsequently consented to taking a breath test while in custody. This argument is also unavailing. The test refusal conviction is not based on Dobis’s refusal to take the PBT. Indeed, the officer chose not to offer a breath test as a means to establish whether Dobis was driving while impaired because Bloch suspected that Dobis was impaired by methamphetamine in addition to alcohol. The officer’s actions were in accord with Minn. Stat. § 169A.51, subd. 3, which permits the officer to select the test methods offered. Thus, Dobis’s offer to take a breath test does not preclude a conviction for test refusal when the test choice presented to him was either a blood or urine test.

Affirmed.