This opinion will be unpublished and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

A06-56

 

State of Minnesota,

Appellant,

 

vs.

 

Justin K. Norgaard,

Respondent.

 

Filed May 30, 2006

Reversed and remanded

Hudson, Judge

Concurring specially, Klaphake, Judge

 

Hennepin County District Court

File No. 05021836

 

 

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

 

Jay M. Heffern, Minneapolis City Attorney, Eileen J. Strejc, Assistant City Attorney, 333 South Seventh Street, Suite 300, Minneapolis, Minnesota 55402 (for appellant)

 

Jeffrey S. Sheridan, Strandemo, Sheridan & Dulas P.A., 320 Eagandale Office Center, 1380 Corporate Center Curve, Eagan, Minnesota 55121 (for respondent)

 

            Considered and decided by Hudson, Presiding Judge; Klaphake, Judge; and Crippen, Judge.*

U N P U B L I S H E D   O P I N I O N

HUDSON, Judge

In this appeal from a pretrial order granting respondent’s motion to dismiss a gross-misdemeanor test-refusal count, the state argues that the district court erred in ruling that the Minnesota Motor Vehicle Implied Consent Advisory violates procedural due process.  Because the advisory clearly informs the driver that refusal to test is a crime, and it does not actively mislead the driver as to his legal obligation to take the test, the advisory does not violate due process.  We reverse and remand.

FACTS

 

            At approximately 2 a.m. on April 9, 2005, State Trooper Andrew DeRungs was standing on the right shoulder of southbound I-35W just north of the 46th Street exit ramp, issuing a citation during a traffic stop.  While he was issuing the citation, a red Tahoe traveling southbound in the exit-only lane drove near the fog line and almost struck Trooper DeRungs.  Trooper DeRungs returned to his squad car and pursued the vehicle.  The Tahoe changed lanes from the exit-only lane to the right-hand lane of I-35W without signaling a lane change.  Trooper DeRungs caught up with the vehicle, which pulled over just north of the 60th Street exit.  As Trooper DeRungs approached the vehicle, the driver, Justin Norgaard, got out of the vehicle and fell to the pavement.  While talking with Norgaard, the trooper detected a strong odor of alcohol and observed that Norgaard’s eyes were watery and bloodshot.  He also noticed that Norgaard was slurring his speech.  Trooper DeRungs asked Norgaard to take a preliminary breath test; Norgaard refused.  Trooper DeRungs arrested Norgaard and transported him to the police department’s chemical-testing unit, where Norgaard was read the Minnesota Motor Vehicle Implied Consent Advisory.  Norgaard was given time to contact an attorney, but he was unable to do so.  Norgaard declined all requests to submit to testing on the basis that he could not reach his attorney.  Norgaard was charged with third-degree refusal to submit to chemical testing, in violation of Minn. Stat. §§ 169A.20, subd. 2, 169A.26, subds. 1, 2 (2004); and fourth-degree driving while under the influence, in violation of Minn. Stat. §§ 169A.20, subd. 1(1), 169A.27, subds. 1, 2 (2004).

            In response to Norgaard’s pretrial motion to dismiss, the district court found that Trooper DeRungs had (1) a reasonable, articulable suspicion for stopping Norgaard and (2) sufficient probable cause to arrest Norgaard for driving while under the influence.  The district court, however, dismissed the gross-misdemeanor count of third-degree refusal to submit to a chemical test, concluding the statutes were unconstitutionally violative of procedural due process.  The district court incorporated two other district court opinions concluding that because the advisory in its current form does not adequately warn drivers that refusal to submit to testing could result in a harsher penalty than consenting to the test, it is unconstitutional.  The state appeals.

D E C I S I O N

The state argues that the district court erred in ruling that the Minnesota Motor Vehicle Implied Consent Advisory violates procedural due process by failing to notify a defendant that refusal to submit to testing is a gross misdemeanor.  We agree.

Respondent argues that there are no legitimate reasons for not telling a driver that refusal might result in a more serious charge than failing the test.  Although respondent’s argument has merit, we are not persuaded that the present implied-consent advisory violates due process.  This court recently released opinions in companion cases concluding that a driver’s due-process rights are not violated when a police officer gives the driver a standard implied-consent advisory but fails to inform the driver that refusal to submit to chemical testing for intoxication is a gross misdemeanor that may result in harsher penalties than test failure.  State v. Myers, 711 N.W.2d 113, 119 (Minn. App. 2006), review granted (Minn. May 16, 2006); State v. Melde, No. A05-1553 (Minn. Mar. 14, 2006), review granted (Minn. May 16, 2006).  The issue on appeal here is indistinguishable from the issue in Myers and Melde, and we decide this case in a consistent manner.  Because the advisory informs the driver that refusal to test is a crime and does not actively mislead the driver as to his legal obligations to take the test, the district court erred in its judgment that the advisory violates a driver’s due-process rights.

            Reversed and remanded.

 

KLAPHAKE, Judge (concurring specially)

            While I concur in the result because it comports with State v. Myers, 711 N.W.2d 113 (Minn. App. 2006), review granted (Minn. May 16, 2006), and its flourishing progeny, I write separately to note my concerns with the constitutionality of the implied consent advisory as it relates to informing a driver of the enhanced criminal penalties that result from refusal to submit to chemical testing.  The current state of the law with regard to the implied consent advisory is dangerously close to vanquishing a valid constitutional liberty interest. 

            The United States and Minnesota constitutions prohibit deprivation of “life, liberty or property without due process of law.”  U.S. Const., amend. XIV, § 1; Minn. Const., art. I, § 7.  The procedural protections of due process are adaptable, depending on the particulars of each case.  See Morrissey v. Brewer, 408 U.S. 471, 481, 92 S. Ct. 2593, 2600 (1972).  Under federal and Minnesota law, it is not fundamentally unfair for a state to choose not to advise a driver of every possible consequence of refusing chemical testing for alcohol.  South Dakota v. Neville, 459 U.S. 553, 564-66, 103 S. Ct. 916, 923-24 (1983); Davis v. Comm’r of Pub. Safety, 517 N.W.2d 901, 904 (Minn. 1994).

            In Davis, the Minnesota Supreme Court specifically noted that it was “troubled by the deficiencies of the current advisory” but upheld the constitutionality of the 1994 version of the advisory, which failed to inform the DUI driver that refusal to submit to testing would result in a statutory 90-day loss of the driver’s license under the implied consent law.  Davis, 517 N.W.2d at 904.  The Davis court stated that it was “unwilling at this time to say that the advisory violates procedural due process,” but it did note that nothing in the then-current law “create[d] an insurmountable barrier to holding that the due process clause of the Minnesota Constitution requires the giving of a more complete implied consent advisory.”  Id.  More recently, in Fedziuk v. Comm’r of Pub. Safety, 696 N.W.2d 340, 348 (Minn. 2005), the Minnesota Supreme Court struck down a statutory amendment to the implied consent statute that eliminated the requirement that judicial review of a driver’s prehearing license suspension must be conducted within 60 days after the filing of the petition for judicial review.  There, the court held that the amendment violated a driver’s “critical” due process rights.  Id. at 349.  These cases show that Minnesota continues to protect the due process rights of drivers in the implied consent context. 

            The legislative change at issue here enhances the punishment for refusal to submit to testing by making it a gross misdemeanor for a driver to refuse to submit to testing.  Minn. Stat. § 169A.26, subd. 2 (2004).  I believe that this is a distinction that does make a constitutional difference.  See Goldberg v. Kelly, 397 U.S. 254, 262-263, 90 S. Ct. 1011, 1018 (1970) (due process protections vary according to extent party “may be condemned to suffer grievous loss”).  Because the driver is now subject to the much harsher penalty of a gross misdemeanor sentence, the driver who is informed only that refusing the test is a crime is not informed of the weighty liberty interest at stake in his choice.  If the first-time arrestee submits to testing (without any aggravating factors) but fails the test, the arrestee has committed a misdemeanor.  Minn. Stat. § 169A.27 (2004).  If the arrestee refuses to submit to testing, the arrestee has committed a gross misdemeanor.  Minn. Stat. § 169A.26, subd. 2.[1]  Because of the liberty interest at stake, the advisory should inform a driver that refusal to submit to testing will result in a harsher penalty than failing the test.  In addition to comporting with due process, this simple change in the implied consent advisory would also further the legislature’s objective to encourage drivers to submit to chemical testing.