A06-729

State of Minnesota,

Respondent,

vs.

Allen Raymond Thompson,

Appellant.

Filed June 12, 2007

Affirmed

Hudson, Judge

Roseau County District Court

File No. K9-05-000411

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

Lisa B. Hanson, Roseau County Attorney, 606 Fifth Avenue Southwest, #10, Roseau, Minnesota 56751 (for respondent)

John M. Stuart, State Public Defender, Susan Andrews, Assistant Public Defender, 2221 University Avenue Southeast, Suite 425, Minneapolis, Minnesota 55414-3230 (for appellant)

Considered and decided by Dietzen, Presiding Judge; Randall, Judge; and Hudson, Judge.

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

HUDSON, Judge

Appellant challenges his conviction of third-degree test refusal, arguing that the police officer who gave appellant the implied-consent advisory mistakenly told appellant that refusal was not a crime, thereby misleading appellant in violation of his due-process rights. Because appellant failed to raise this issue before the district court, we affirm.

FACTS

On April 10, 2005, around 1:00 a.m., appellant Allen Thompson was pulled over by a Roseau County deputy sheriff while driving in Badger, Minnesota. The deputy pulled appellant over because he observed appellant’s vehicle drive into the oncoming lane of traffic. Appellant admitted to the deputy that he had had a couple of drinks that night. He agreed to submit to a preliminary breath test (PBT) and blew a .185. He also agreed to perform several field sobriety tests, all of which he failed. The deputy arrested appellant for DWI and transported him to the Roseau County Sheriff’s Department.

Once at the sheriff’s department, the deputy read appellant the implied-consent advisory. The deputy checked the applicable items on the advisory form as he read and, according to his own testimony, scribbled out the third item, which refers to criminal vehicular homicide, because it did not apply to appellant. The deputy explained that “I usually scribble it out and they basically look at it when I’m doing it.”

Appellant did not have his own copy of the advisory to read and stood across from the deputy while the deputy read the advisory; therefore, appellant was looking at the advisory upside down as the deputy read it to him. The deputy’s recitation of the advisory was tape recorded and later played for the jury:

[DEPUTY]: Okay, Allen, I believe you have been driving, operating or controlling a motor vehicle in violation of Minnesota D.W.I. laws and you have been placed under arrest for this offense. Minnesota law requires you to take a test to determine if you are under the influence of alcohol. Refusal to take a test is a crime. That one does not apply to you. Before making your decision about testing, you have the right to consult with an attorney. If you wish to do so, a telephone will be made available to you. If you are unable to contact an attorney, you must make the decision on your own. You must make your decision within a reasonable period of time. If the test is unreasonably delayed or if you refuse to make a decision, you will be considered to have refused the test. Do you understand what I have just explained to you?

DEFENDANT: Absolutely.

(Emphasis added.)

At trial, appellant testified that the deputy “whipped right through” the advisory. He also stated that he did not remember the deputy scribbling off the part of the advisory that refers to criminal vehicular homicide. Appellant testified that “when he read that Implied Consent block, he checked them boxes. I didn’t get a chance to hardly say nothing.”

The deputy testified that when he stated “[t]hat one does not apply to you,” he was referring to the criminal vehicular homicide portion of the advisory and not the portion of the advisory that states that “[r]efusal to take a test is a crime.” When asked by the prosecutor at trial whether he understood what the deputy meant, appellant testified: “Yes, now after I read it, yes.”

After reading the implied-consent advisory to appellant, the deputy offered him a blood test and a urine test. Appellant refused both tests. That morning, there was no one at the sheriff’s department certified to run the Intoxilyzer, so the deputy did not offer appellant a breath test.

After appellant refused testing, the deputy left to go out on another call. Shortly thereafter, the dispatcher notified the deputy that appellant wanted to speak to him again. When the deputy returned, appellant asked to see the implied-consent advisory form again, and the deputy gave it to him. The deputy testified that he then left the office and left the advisory with appellant to read; he estimated that it took appellant two to four minutes to read the advisory. At that point, appellant did not ask to take a test and the deputy did not offer him one.

The deputy left again to go out on a call, and a short while later the dispatcher called him to tell him that appellant wanted to take a breath test. This took place approximately 20 minutes after appellant’s initial refusal. The deputy testified that he told the dispatcher that “it was too late, he can’t take the test now, he’s already refused, and there’s no one around to do it anyways.”

On June 14, 2005, the state charged appellant with one count of Refusal to Submit to Testing in the Third Degree, in violation of Minn. Stat. งง 169A.20, subd. 2, .26 (2004), and one count of Fourth Degree Misdemeanor Driving While Impaired, in violation of Minn. Stat. งง 169A.20, subd. 1(1), .27 (2004).

On August 12, 2005, appellant filed a motion to dismiss for lack of probable cause. At the omnibus hearing on September 19, 2005, appellant argued that there was insufficient probable cause and that the deputy could not have observed him driving in the other lane. No testimony was taken regarding the implied-consent form.

On September 30, 2005, appellant filed two memoranda in support of his motion to dismiss. He argued that (1) the implied-consent advisory read to appellant was unconstitutional under Fedziuk v. Comm’r of Pub. Safety, 696 N.W.2d 340 (Minn. 2005) and that his test refusal should be suppressed; (2) there was insufficient probable cause to justify a stop; and (3) there was a State v. Scales, 518 N.W.2d 587 (Minn 1994), violation. On October 6, 2006, appellant also filed a motion claiming that Minn. Stat. ง 169A.52, subd. 7 (2004), is unconstitutional under Fedziuk.

On October 21, 2005, the district court denied appellant’s motions to dismiss. The district court also denied appellant’s motion to suppress statements or test results because of a violation of his due-process and constitutional rights.

A jury heard the case on December 14, 2005. After a brief deliberation, the jury returned guilty verdicts on both counts. The district court sentenced appellant to 365 days in the Roseau County jail and stayed execution for two years. This appeal follows.

D E C I S I O N

Appellant argues that his conviction of third-degree test refusal under Minn. Stat. ง 169A.20, subd. 2 (2004), must be reversed because the deputy’s reading of the implied-consent advisory misled him about the legal consequences of test refusal. Appellant did not raise this issue before the district court. This court will generally not consider matters not argued and considered in the district court even if they involve constitutional questions, State v. Franklin, 692 N.W.2d 82, 86 (Minn. App. 2005), review denied (Minn. Apr. 19, 2005), but may choose to do so where the interests of justice so require. State v. Benniefield, 678 N.W.2d 42, 45 (Minn. 2004). The purpose of such a rule is to “encourage the development of a factual basis for claims at the district court level.” Johnson v. State, 673 N.W.2d 144, 147 (Minn. 2004).

Because this issue was not raised before the district court, the factual record regarding the deputy’s reading of the implied-consent advisory is insufficient to facilitate review, even if we were so inclined. Facts critical to an analysis of the implied-consent advisory were not developed, and therefore, it is not in the interests of justice to consider this claim on appeal. See Garza v. State, 632 N.W.2d 633, 637 (Minn. 2001) (concluding that because the factual record with respect to an issue not raised before the district court was insufficient, resolution of that issue was not in the interests of justice).

Affirmed.