This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (2004).

 

STATE OF MINNESOTA

IN COURT OF APPEALS

A05-97

 

State of Minnesota,

Respondent,

 

vs.

 

Christopher M. Athey,

Appellant,

 

and

 

Christopher M. Athey, petitioner,

Appellant,

 

vs.

 

Commissioner of Public Safety,

Respondent.

 

Filed September 20, 2005

Affirmed; motion denied
Klaphake, Judge

Randall, Judge, concurring specially

 

Stevens County District Court

File Nos. C6-04-135 & K3-04-108

 

Mike Hatch, Attorney General, Willow Najjar, Assistant Attorney General, 1800 Bremer Tower, 445 Minnesota Street, St. Paul, MN  55101-2134; and

 

Bruce W. Klopfleisch, Assistant Donnelly City Attorney, 109 E. 6th Street, P.O. Box 66, Morris, MN  56267 (for respondent)

 

Derek A. Trosvig, Swenson Lervick Syverson Anderson Trosvig Jacobson, P.A., 710 Broadway, P.O. Box 787, Alexandria, MN  56308 (for appellant)

            Considered and decided by Randall, Presiding Judge, Klaphake, Judge, and Willis, Judge.

U N P U B L I S H E D   O P I N I O N

KLAPHAKE, Judge

            Appellant Christopher M. Athey was charged with refusal to submit to chemical testing in violation of Minn. Stat. §§ 169A.20, subd. 2; .25, subd. 1(b) (2004), and his driver’s license was revoked by respondent Commissioner of Public Safety.  Appellant moved to dismiss the test refusal charge and to reinstate his driving privileges in a combined omnibus/implied consent hearing.  After the district court denied his motions, appellant agreed to a Lothenbach proceeding and was convicted of second-degree test refusal.  Appellant challenges his conviction and the district court’s order sustaining his license revocation.

            Because the district court did not err by concluding that (1) appellant refused chemical testing; (2) his refusal was not reasonable; and (3) his right to counsel was vindicated, we affirm. 

D E C I S I O N

I.

 

We review the district court’s findings of fact for clear error and its legal determinations de novo.  See State v. Wiernasz, 584 N.W.2d 1, 3 (Minn. 1998).  Whether a driver has refused testing is a question of fact.  Busch v. Comm’r of Pub. Safety, 614 N.W.2d 256, 258 (Minn. App. 2000).    

Appellant argues that he did not refuse to submit to chemical testing because (1) he agreed to be tested but insisted on a blood test, and (2) after learning that his license would be revoked for a year for refusing a breath test, he immediately changed his mind and consented to a breath test.    

            A refusal to submit to testing may be found where a driver imposes conditions upon the consent to a test.  Forrest v. Comm’r of Pub. Safety, 366 N.W.2d 371, 372 (Minn. App. 1985) (finding refusal to take breath test and insistence on blood test unreasonable), review denied (Minn. June 27, 1985); see also Minn. Stat. § 169A.51, subd. 3 (2004) (“The peace officer who requires a test . . . may direct whether the test is of blood, breath, or urine.”).  Accordingly, the district court did not err in its conclusion that appellant’s insistence on a blood test was a refusal. 

A driver who initially refuses testing has no absolute right to retract his or her refusal by a later affirmative response to testing.  Palme v. Comm’r of Pub. Safety, 541 N.W.2d 340, 344 (Minn. App. 1995), review denied (Minn. Feb. 27, 1996); Mossak v. Comm’r of Pub. Safety, 435 N.W.2d 578, 579-80 (Minn. App. 1989), review denied (Minn. Apr. 10, 1989).  Although we have encouraged peace officers to be flexible when a driver makes an almost immediate change of mind, we are mindful of the purposes of the refusal law:  to encourage testing, to prevent dissipation of evidence, and to promote police efficiency.  See Palme, 541 N.W.2d at 344.  

Although appellant argues, relying on Schultz v. Comm’r of Pub. Safety, 447 N.W.2d 17, 18-19 (Minn. App. 1989), that his change of mind was immediate, the district court found that appellant was repeatedly informed that his failure to submit to a breath test would be considered a refusal and that his change of mind occurred only after the paperwork was completed.  The record supports these findings, which are not clearly erroneous.  On these facts, the district court did not err by concluding that appellant had refused chemical testing.

II.

 

Under the implied consent law, a driver may present as an affirmative defense that a refusal was reasonable.  Minn. Stat. § 169A.53, subd. 3(c) (2004).  The affirmative defense of reasonable refusal places the burden upon the driver to prove reasonableness by a preponderance of the evidence.  Winder v. Comm’r of Pub. Safety, 392 N.W.2d 21, 24 (Minn. App. 1986), review denied (Minn. Oct. 22, 1986). 

In some circumstances, a driver’s confusion about the law may render the refusal to take the breath test reasonable.  Sigfrinius v. Comm’r of Pub. Safety, 378 N.W.2d 124, 127 (Minn. App. 1985).  A police officer may not actively mislead a driver regarding the statutory obligation to submit to testing or the reasonableness of refusing testing based on advice of counsel.  Maietta v. Comm’r of Pub. Safety, 663 N.W.2d 595, 598 (Minn. App. 2003), review denied (Minn. Aug. 19, 2003).  To make a reasonable refusal, a driver must show that “he was confused with respect to his rights or the consequences of his decision not to submit to testing when he refused testing.”  Id. at 599. 

Appellant argues that his refusal was reasonable because he believed he had a legal right to choose a blood test and because he believed that his use of an asthma inhaler would affect the results of a breath test.  The district court found that (1) police informed appellant that he would be offered only a breath test and that failure to take the breath test would be considered a refusal; (2) police read appellant the implied consent advisory that indicated that a refusal was a crime; and (3) appellant failed to mention his concerns about the effect of his inhaler on the test results.  These findings are supported by the record and are not clearly erroneous.  Based on these findings, the district court correctly concluded that appellant was not confused as to his rights or the consequences of refusal, and thus his refusal to submit to testing was not reasonable. 

III.

A driver arrested for DWI has a limited right to consult with counsel before deciding whether to comply with the statutorily-mandated chemical testing.  State v. Slette, 585 N.W.2d 407, 409 (Minn. App. 1998).  A peace officer must provide reasonable assistance in vindicating this right to counsel.  State v. Collins, 655 N.W.2d 652, 656 (Minn. App. 2003), review denied (Minn. Mar. 26, 2003).  In determining whether the peace officer has vindicated the driver’s limited right to counsel, we focus “both on the police officer’s duties in vindicating the right to counsel and the defendant’s diligent exercise of the right.”  Kuhn v. Comm'r of Pub. Safety, 488 N.W.2d 838, 842 (Minn. App. 1992), review denied (Minn. Oct. 20, 1992).  That determination is a mixed question of law and fact.  Hartung v. Comm’r of Pub. Safety, 634 N.W.2d 735, 737 (Minn. App. 2001), review denied (Minn. Dec. 11, 2001).   

Generally, the limited right to counsel is vindicated if the DWI arrestee is given access to a telephone and time to consult with counsel.  Slette, 585 N.W.2d at 409.  But when the arrestee demands an attorney while in the squad car or holding room, or refuses to respond, or makes a request that is less than clear and unequivocal, the right to counsel may not be violated by failure to provide access to an attorney.  See, e.g., Collins, 655 N.W.2d at 656-58 (no right to counsel for PBT or in squad car enroute to jail; right to counsel not violated when driver’s belligerent and obstreperous behavior frustrated implied consent process); Busch v. Comm’r of Pub. Safety, 614 N.W.2d 256, 259 (Minn. App. 2000) (refusing to respond); State v. Von Bank, 341 N.W.2d 894, 895-96 (Minn. App. 1984) (equivocal response).

Appellant’s reliance on Slette, is misplaced.  In Slette, 585 N.W.2dat 409-10, the officer actively tried to talk the driver out of contacting an attorney.  Based on the record before us, appellant did no more than mention twice in passing that he should talk to an attorney; both times, the officer agreed, but appellant immediately abandoned the request and continued to argue with the officer.  Ultimately, the district court concluded that appellant abandoned any desire to contact an attorney.  The district court’s findings are supported by the record and are not clearly erroneous.  Accordingly, the district court did not err by concluding that appellant’s right to counsel was not violated.

IV.

            Respondent commissioner moved to dismiss the implied consent appeal because appellant failed to post a cost bond or cash deposit as required by Minn. R. Civ. App. P. 107.  While implied consent matters are included in the ambit of this rule, no cost bond is required for a criminal appeal.  Minn. R. Crim. P. 28.02, subd. 4(1); Minn. R. Civ. App. P. 107.02(a).  We accepted the appeal from the consolidated district court order as a criminal appeal to be governed by the criminal rules.  Because no cost bond is required in a criminal proceeding, none was required in this proceeding. 

            Affirmed; motion denied.

RANDALL, Judge (concurring specially)

            I concur in the result.