This opinion will be unpublished and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

A05-1736

 

Kimberly Ann Schramm, petitioner,

Appellant,

 

vs.

 

Commissioner of Public Safety,

Respondent.

 

Filed ­­­July 11, 2006

Affirmed; motion granted

Dietzen, Judge

Concurring specially, Klaphake, Judge

 

Washington County District Court

File No. C3-05-1095

 

Steven J. Meshbesher, Kevin M. Gregorius, Meshbesher & Associates, P.A., 225 Lumber Exchange Building, 10 South Fifth Street, Minneapolis, MN 55402 (for appellant)

 

Mike Hatch, Attorney General, Sean R. McCarthy, Assistant Attorney General, 1800 Bremer Tower, 445 Minnesota Street, St. Paul, MN 55101 (for respondent)

 

            Considered and decided by Stoneburner, Presiding Judge; Klaphake, Judge; and Dietzen, Judge.

U N P U B L I S H E D   O P I N I O N

 

DIETZEN, Judge

 

            Appellant challenges the district court order sustaining the revocation of her driver’s license following her refusal to submit to alcohol-concentration testing, arguing that (1) she was denied due process when her implied-consent hearing was not held within 60 days; (2) the officers lacked probable cause to search another’s residence and to believe that she had violated the impaired-driving statutes; (3) her test refusal was reasonable under the circumstances; and (4) the implied-consent advisory is unconstitutional as a violation of due process.  Because the district court properly applied the law and did not abuse its discretion and the implied-consent advisory is constitutional, we affirm.

FACTS

            In January 2005, police officers Michael Vandevort and Andria Lindeen responded to a call that a vehicle reportedly hit a dirt berm on a private driveway, rolled over on its top, and its occupant may require assistance.  When the officers arrived at the scene, the vehicle was unoccupied and severely damaged.  Two witnesses at the scene reported that its occupant, an adult female later identified as appellant Kimberly Ann Schramm, told the witnesses to walk to the residence and “get Bill,” who was later identified as appellant’s boyfriend William Winchell. 

When Winchell was contacted, he went to the overturned vehicle and pulled appellant out of the vehicle by her ankles.  Winchell told the witnesses to leave and not call the police, and then removed several empty bottles of wine and alcohol from the vehicle and threw them into a wooded area near the scene. 

            Based on their observations of the damage vehicle and their interviews of the witnesses, officers Vandevort and Lindeen, who were trained and certified paramedics, were concerned that appellant was injured and in need of emergency aid.  The officers, who had their medical equipment, walked to the residence to offer emergency aid.  As they approached the residence, the officers were stopped by Winchell, who smelled strongly of alcohol.  Winchell stated that he would “take care of it,” and instructed them to “get off his property.”  Because Winchell appeared intoxicated and did not state whether appellant was injured or not, Officer Lindeen concluded that they should talk to appellant. 

            At the residence, the officers observed appellant through a window sitting on the couch.  The parties dispute what occurred next.  Both officers stated that they knocked on the door to the residence, that appellant invited them into the front entryway for one to two minutes, and then requested that they continue the conversation outside, and that the officers complied.  Appellant indicated to the officers that she was not injured and did not need an ambulance.  Both officers reported that, during this initial conversation, appellant smelled strongly of alcohol, and exhibited bloodshot and watery eyes, slurred speech, and poor balance; and observed that appellant’s walk was unsteady and that she was “staggering.”  When asked if she had been drinking, appellant stated that “she had been drinking earlier in the evening and that she had a fight with her boyfriend and had left in the vehicle and that’s when she rolled it over.” 

Appellant testified that she did not consent to the officers’ entry into Winchell’s home.  Initially, appellant stated, “I don’t remember letting them in.  I don’t think I let them in.  I think they entered,” but later testified that the officers walked in without permission and failed to identify themselves.  Appellant also testified that she did not recall the officers inquiring about her injuries.  

While outside the residence, Lindeen performed the horizontal gaze nystagmus test and appellant showed all six signs of impairment.  Because of the negative 30 degree windchill, the officers did not perform field sobriety tests.  When appellant stated that she was cold, the officers invited her to sit in the squad car, which she did with the door open.  Appellant was then given a preliminary breath test, which she attempted to manipulate by feigning blowing into the machine.  Lindeen hit the manual capture button on the machine, which came back with a blood-alcohol-concentration reading of .095.

Appellant was arrested for DWI and transported to the police station.  Appellant was then read the Minnesota Implied Consent Advisory, which included warnings that “refusal to take a test is a crime” and “[i]f the test is unreasonably delayed or if you refuse to make a decision, you will be considered to have refused the test.”  Appellant indicated with an oral “yes” that she understood the implied-consent advisory and stated that she wished to consult with an attorney.  Appellant was provided a telephone and phonebooks for 35 minutes; during that time she contacted her mother once and Winchell several times.  Appellant indicated that Winchell was attempting to locate an attorney for her, but she did not attempt to contact any attorneys on her own.  When asked if she was finished using the phone, appellant answered, “Yes.”  Appellant refused to take an alcohol-concentration test despite being warned that it would result in license revocation, and received a notice and revocation of her driver’s license. 

Appellant filed a petition for judicial review of the revocation with the district court challenging the revocation.  At the implied-consent hearing, respondent presented the testimony of officers Vandevort and Lindeen.  Appellant admitted to driving the vehicle; but testified that the implied-consent advisory was “vague” and that she had been confused about her rights.  

            Following the implied-consent hearing, the district court sustained the revocation of appellant’s driving privileges, determining that appellant’s due-process rights to a timely review hearing were not violated; the officers’ warrantless entry into Winchell’s home was justified by the emergency exception and appellant’s consent; the officers had probable cause to believe that appellant had violated the impaired-driving statutes and to invoke the implied-consent law; appellant’s test refusal was not reasonable; and the implied-consent advisory did not violate due process.  This appeal followed. 

D E C I S I O N

I.

            Appellant raises four arguments on appeal.  First, appellant argues that she was denied due process of law when her implied-consent hearing was not conducted within 60 days after filing her petition for judicial review, based on her contention that the district court erred by finding that the petition was filed on February 9 rather than January 21, 2005.  

            A district court’s findings of fact will not be reversed unless clearly erroneous.  Jasper v. Comm’r of Pub. Safety, 642 N.W.2d 435, 440 (Minn. 2002).  Clearly erroneous means “manifestly contrary to the weight of the evidence or not reasonably supported by the evidence as a whole.”  Dufrane v. Comm’r of Pub. Safety, 353 N.W.2d 705, 707 (Minn. App. 1984). 

            Motion to Strike

            As a threshold matter, respondent argues that appellant failed to present any evidence to the district court refuting the February 9 filing date and moves to strike any new evidence presented in appellant’s brief and appendix regarding an earlier filing date. 

            The papers filed in the district court, the exhibits, and the transcript of the proceedings shall constitute the record on appeal.  Minn. R. Civ. App. P. 110.01.  An appellate court may not base its decision on matters outside the record on appeal and may not consider matters not produced and received in evidence below.  Thiele v. Stich, 425 N.W.2d 580, 582 (Minn. 1988).  When an appellate brief or appendix contains matters that are not part of the record below and were not considered by the district court, a motion to strike is properly granted.  Krueger v. Wash. Fed. Sav. Bank, 406 N.W.2d 543, 545 (Minn. App. 1987).  Because appellant’s brief and appendix contain evidence of an earlier filing date that was not introduced or received into evidence below, we grant respondent’s motion to strike those portions of appellant’s brief and appendix.

            Timely Judicial Review

            When appellant petitioned for judicial review of the revocation of her driver’s license, the governing statute provided no time period for conducting the review hearing. See Minn. Stat. § 169A.53, subd. 3(a) (2004).  The supreme court subsequently held that the absence of a statutory time period was unconstitutional and revived the previous version of the statute.  Fedziuk v. Comm’r of Pub. Safety, 696 N.W.2d 340, 348-49 (Minn. 2005).  The revived version of Minn. Stat. § 169A.53, subd. 3(a) (2002), provides that an implied-consent hearing for a driver’s license revocation “must be held at the earliest practicable date, and in any event no later than 60 days following the filing of petition for review.”  (Emphasis added). 

            Appellant contends that she mailed the petition for judicial review on January 20, 2005, and that the petition was received by the court administrator on January 21, 2005, and, therefore, the district court erred by finding that the petition was filed on February 9, 2005.  But the record before the district court indicates that the court administrator stamped and initialed the petition as filed on February 9, 2005.  This is the same filing date listed in the official court information system.  And appellant presented no evidence to the contrary in district court.  Consequently, the district court’s finding that February 9, 2005, is the proper filing date for triggering the 60-day time limit is not clearly erroneous. 

A February 9, 2005 filing date resulted in expiration of the 60-day time limit on Sunday, April 10, 2005.  Under Minn. R. Civ. P. 6.01, an additional day is added when the deadline falls on a Sunday.  See Minn. Stat. § 169A.53, subd. 2(d) (judicial reviews must be conducted according to the Rules of Civil Procedure).  Consequently, the April 11, 2005 date of the implied-consent hearing was within the 60-day time limit, and appellant’s due-process rights were not violated. 

II.

            Second, appellant argues that the officers lacked probable cause to search Winchell’s residence and to arrest her for violating the impaired-driving statutes.  A determination of probable cause is a mixed question of fact and of law.  Clow v. Comm’r of Pub. Safety, 362 N.W.2d 360, 363 (Minn. App. 1985), review denied (Minn. Apr. 26, 1985).  This court considers the totality of the circumstances when determining probable cause.  Eggersgluss v. Comm’r of Pub. Safety, 393 N.W.2d 183, 185 (Minn. 1986). 

           

Probable Cause to Search

            Appellant argues that the officers entered Winchell’s residence without probable cause and, therefore, the district court erred by not suppressing evidence from the search.  Respondent contends that the warrantless search was valid under the emergency aid and consent exceptions to the probable cause requirement.   

In reviewing the legality of a search, we will reverse the district court’s findings only if they are “clearly erroneous or contrary to law.”  State v. Munson, 594 N.W.2d 128, 135 (Minn. 1999) (quotation omitted).  But the state has the burden of demonstrating that police conduct was justified under an established exception to the warrant requirement.  State v. Anderson, 388 N.W.2d 784, 787 (Minn. App. 1986), review denied (Minn. Aug. 20, 1986).  Whether police obtained a valid consent to search is a legal issue, which this court reviews de novo.  See State v. Thompson, 578 N.W.2d 734, 740-41 (Minn. 1998) (holding, without deference to the district court, that police obtained consent to search).

The United States and Minnesota Constitutions protect against unreasonable searches and seizures by the state, and require that “no warrants shall issue, but upon probable cause[.]”  U.S. Const. amend. IV; Minn. Const. art. I, § 10.  Warrantless searches are presumptively unreasonable unless one of a few specifically established exceptions applies.  State v. Licari, 659 N.W.2d 243, 250 (Minn. 2003). 

The district court found that the warrantless search was reasonable under the “emergency exception.”  See State v. Lopez, 698 N.W.2d 18, 23 (Minn. App. 2005) (exception to the protections against warrantless searches exists for emergency situations).  The “emergency exception” to the warrant and probable cause requirements permits police to make warrantless entries and searches of homes when they reasonably believe that a person is in need of immediate aid.  State v. Anderson, 388 N.W.2d 784, 787 (Minn. App. 1986), review denied (Minn. Aug. 20, 1986).  The focus of the inquiry is whether the facts available to the officers at the time of entry would lead a person of reasonable caution to believe that someone inside the home needed emergency assistance.  County of Hennepin v. Law Enforcement Labor Servs., Inc., 527 N.W.2d 821, 826 (Minn. 1995). 

            Here, the officers were trained paramedics who, based on their observation of the severely damage vehicle and their interviews of the witnesses, believed that the occupant may have sustained injuries that required emergency aid.  One witness reported that appellant was physically pulled by her ankles from the damaged vehicle and may be injured.  And Winchell, who did not state whether appellant was injured, was unreliable in assessing whether appellant was injured due to his apparent intoxication.  Consequently, the district court’s finding that the officers’ entry onto Winchell’s property was justified based on their reasonable belief, as established by objective facts, that appellant was in need of emergency aid, is not clearly erroneous. 

            The district court also found that the warrantless search was valid based on appellant’s consent.  A search of a residence that is conducted with consent constitutes an exception to the requirement to have both a warrant and probable cause.  State v. Hanley, 363 N.W.2d 735, 738 (Minn. 1985).  Under the doctrine of “apparent authority,” consent to entry is valid if, under an objective standard, the officer reasonably believes that a third party had authority over the premises and could give consent to enter.  Thompson, 578 N.W.2d at 740.  A person need not live at a residence to have apparent authority.  See id. (stating that guest may have apparent authority to consent to a search).  “Where the consent involves a guest actually present inside the dwelling who merely invites the police into an area where visitors would normally be received, [t]here is sound authority that, at least when the guest is more than a casual visitor and had the ‘run of the house,’ [his] lesser interest in the premises is sufficient to render that limited consent effective.”  Id. (quotations omitted).  Courts look to the totality of the circumstances in determining whether it was reasonable for the police to believe that the consenting individual had apparent authority to consent to a search.  Id. 

            Here, appellant was present in Winchell’s home in the late evening and early morning hours after the accident, suggesting that she was more than a “casual visitor” and “had the run of the house.”  See id. (party who was more than casual visitor, had run of the property, and was old enough to understand seriousness of entry had apparent authority to consent to search).  And the officers testified that appellant invited them into the front entryway, where they spoke for a few minutes, and then at appellant’s request, continued the conversation outside the residence.  Although appellant testified that she did not consent to the officers’ entry, this court defers to the factfinder’s determination of the credibility of witnesses and the weight to be given to their testimony.  State v. Pieschke, 295 N.W.2d 580, 584 (Minn. 1980).  Based on the totality of the circumstances, the district court’s finding that appellant gave consent to the officers’ entry under her apparent authority is not clearly erroneous.

            Probable Cause for Arrest

            Appellant further argues that the officers lacked probable cause to arrest her for violating the impaired-driving statutes.  Respondent contends that there was ample probable cause to arrest appellant because she exhibited multiple indicia of impairment.  

            A police officer may lawfully arrest a person for a violation of Minn. Stat. § 169A.20 (2004) (driving while impaired) upon probable cause.  Minn. Stat. § 169A.40, subd. 1 (2004).  Probable cause to arrest requires something more than suspicion and something less than the evidence necessary for a conviction.  State v. Horner, 617 N.W.2d 789, 796 (Minn. 2000).  Probable cause exists when there are sufficient facts “such that under the circumstances a person of ordinary care and prudence would entertain an honest and strong suspicion that a crime has been committed.”  Id. (alterations and quotations omitted).  In DWI law, “[a]n officer needs only one objective indication of intoxication to constitute probable cause to believe a person is under the influence.”  State v. Kier, 678 N.W.2d 672, 678 (Minn. App. 2004) (citation omitted).  These objective indications include an odor of alcohol, bloodshot or watery eyes, slurred speech, and an admission that the suspect has been drinking.  Id. (odor of alcohol, bloodshot and watery eyes, and slurred speech); Groe v. Comm’r of Pub. Safety, 615 N.W.2d 837, 841 (Minn. App. 2000), review denied (Minn. Sept. 13, 2000) (admission of drinking). 

            Here, appellant was involved in a one-vehicle accident in a driveway, which suggests impairment.  See Heuton v. Comm’r of Pub. Safety, 541 N.W.2d 361, 363 (Minn. App. 1995) (finding probable cause in part because no reason for one-car accident to occur on clear, dry day independent of driver impairment).  The officers observed recognized indicia of impairment during their initial conversation with appellant, including a strong odor of alcohol, bloodshot and watery eyes, slurred speech, poor balance, and difficulty walking.  Appellant also admitted that she had been drinking before the accident.  Based on the totality of circumstances, probable cause existed to arrest appellant for violating the impaired-driving statutes. 

III.

            Third, appellant argues that her refusal to submit to alcohol-concentration testing was reasonable because she was confused as to the consequences of the implied-consent law.  Whether refusal was reasonable under the implied-consent law is a question of fact that will not be set aside unless clearly erroneous.  State, Dep’t of Highways v. Beckey, 291 Minn. 483, 486-87, 192 N.W.2d 441, 444-45 (1971).  Conclusions of law will be reviewed de novo.  Butala v. State, 664 N.W.2d 333, 338 (Minn. 2003). 

            Under the implied-consent law, a motorist 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 on the motorist 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 motorist’s confusion about the law may render the refusal to take a chemical test reasonable.  Sigfrinius v. Comm’r of Pub. Safety, 378 N.W.2d 124, 127 (Minn. App. 1985).  A motorist must show confusion with respect to her rights or the consequences of her decision not to submit to testing when she refused.  Maietta v. Comm’r of Pub. Safety, 663 N.W.2d 595, 599 (Minn. App. 2003).  If the motorist does not inform the officer that she was confused as to her rights, the officer has no obligation to clear up any alleged confusion.  Norman v. Comm’r of Pub. Safety, 412 N.W.2d 22, 24 (Minn. App. 1987). 

            Here, the district court found that appellant was read and understood the implied-consent advisory and, therefore, there was no basis to conclude that refusal of the test was reasonable.  The police reports, officer testimony, and the advisory form all indicate that appellant was read the advisory and that she stated affirmatively that she understood the advisory.  Lindeen testified that at no time did appellant inform her that that she was confused as to her rights or the consequences of test refusal.  Consequently, the district court’s finding is not clearly erroneous, and the district court properly rejected appellant’s affirmative defense of reasonable refusal. 

IV.

            Fourth, appellant argues that the Minnesota Implied Consent Advisory violates due process because it fails to adequately inform an arrested individual that the crime of test refusal could result in harsher criminal penalties than a first-offense test failure.  Whether an implied-consent advisory violates a motorist’s due-process rights is a question of law, which this court reviews de novo.  Fedziuk v. Comm’r of Pub. Safety, 696 N.W.2d 340, 344 (Minn. 2005).

            It is a well-settled principle that due process does not require that the implied-consent advisory warn a motorist of every possible consequence of taking or refusing to take a chemical test.  McDonnell v. Comm’r of Pub. Safety, 473 N.W.2d 848, 853 (Minn. 1991) (citing South Dakota v. Neville, 459 U.S. 553, 103 S. Ct. 916 (1983)); see Magnuson v. Comm’r of Pub. Safety, 703 N.W.2d 557, 562 (Minn. App. 2005) (“[t]he failure of the advisory to warn of every possible consequence does not violate fundamental fairness inherent in due process.”) (quotation omitted).  “Likewise, due process does not require that the advisory explain every potentially unclear application of the law.”  Catlin v. Comm’r of Pub. Safety, 490 N.W.2d 445, 447 (Minn. App. 1992).  Consequently, this court has upheld the implied-consent advisory in the face of due- process challenges despite the fact that it failed to inform motorists that driving with an alcohol concentration of .20 or more was an aggravating factor that could enhance a DWI charge, Magnuson, 703 N.W.2d at 562; to advise motorists of alternative means of chemical testing, Moe v. Comm’r of Pub. Safety, 574 N.W.2d 96, 98-99 (Minn. App. 1998), review denied (Minn. Apr. 14, 1998); and to address the consequences for a motorist whose license revocation was later rescinded, Catlin, 490 N.W.2d at 447. 

            And, during the pendency of this appeal, this court addressed the same due-process challenge to the implied-consent advisory raised by appellant.  State v. Myers, 711 N.W.2d 113, 116 (Minn. App. 2006), review granted (Minn. May 16, 2006).  In Myers, this court held that failing to inform a motorist that refusal is a gross misdemeanor that may result in harsher penalties than a test failure does not violate the motorist’s due-process rights.  Id. at 118.  We agree with the reasoning of the Myers decision and, therefore, conclude that the implied-consent advisory does not violate due process by failing to warn a motorist that refusal may result in harsher penalties than test failure. 

            Affirmed; motion granted. 

KLAPHAKE, Judge (concurring specially)

            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).  I do, however, have grave concerns regarding the constitutionality of the current implied consent advisory because it fails to clearly inform a driver of enhanced criminal penalties for refusal to submit to chemical testing.  My position is detailed in State v. Norgaard, No. A06-56 (Minn. App. May 30, 2006) (Klaphake, J., concurring specially).