Filed August 7, 2007

Affirmed

Randall, Judge

Clay County District Court

File No. KX-05-2276

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

Brian J. Melton, Clay County Attorney, 807 North 11th Street, Moorhead, MN 56560 (for respondent)

John M. Stuart, State Public Defender, 2221 University Avenue Southeast, Minneapolis, MN 55414; and

Charles F. Clippert, Special Assistant Public Defender, Bethel & Associates, 2677 County Road 10, Mounds View, MN 55112 (for appellant)

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

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

RANDALL, Judge

On appeal from conviction of third-degree refusal to submit to testing, appellant argues that (1) the district court committed plain error in failing to instruct the jury on physical control in a manner that accounted for appellant’s defense that the car was inoperable; and (2) the failure to instruct on reasonable refusal was plain error. We conclude the district court fairly instructed the jury. We affirm.

FACTS

While on patrol on October 26, 2005, at approximately 2:30 a.m., Officer Bradley Schenck observed appellant Lawrence Henne sitting in the back seat of a vehicle behind the driver’s seat in a vehicle parked in front of a local bar. Upon approaching the vehicle, Officer Schenck observed that the window was down and that appellant was sleeping. Officer Schenck also detected a “strong odor” of an alcoholic beverage emanating from the car. After knocking several times on the window, appellant responded. Appellant told the officer that he was sleeping in his vehicle because he had too much to drink that night and did not want to drive home.

Because appellant claimed that he did not have the keys, Officer Schenck called a cab for appellant. However, while waiting for the cab, the officer heard a “jingling” noise come from appellant’s pant’s pocket. Appellant told the officer that it was change, but further investigation revealed a set of keys that could be used to start the vehicle. Officer Schenck subsequently canceled the cab and began to administer a number of field sobriety tests.

According to Officer Schenck, appellant failed to adequately perform the field sobriety tests. Appellant was then placed under arrest and transported to the Clay County Jail where he was read the implied-consent advisory. After attempting without success to contact an attorney, appellant consented to giving a breath test. Appellant attempted to provide a sample eight different times, but was unable to provide an adequate sample for testing. According to appellant, he was unable to provide an adequate sample because he has emphysema from smoking. Appellant was subsequently offered the choice of providing a blood or urine sample. Although appellant was informed of the possible consequences of test refusal, appellant declined further testing. As a result, appellant was charged with third-degree refusal to submit to testing.

A jury trial was held on March 21, 2006. At trial, appellant testified that his car had a bad alternator and that he charged the car battery before he drove to the bar that night, but did not believe he could drive it home. According to appellant, he planned to sleep in his car that night because he missed his ride home from the bar. Appellant also testified that when he picked up his vehicle the following afternoon, he had to jump-start the vehicle. Appellant further testified that he did not want to provide a blood or urine sample because he had just received a flu shot and the wound was still bleeding. Appellant stated that he
did not like the idea of a needle and wanted to talk with an attorney before consenting to further testing.

The district court instructed the jury on the crime of refusal to submit to testing in the third-degree. Appellant was found guilty of the charged offense. This appeal followed.

D E C I S I O N

District courts are allowed “considerable latitude” in the selection of language for jury instructions. State v. Baird, 654 N.W.2d 105, 113 (Minn. 2002). This court reviews jury instructions in their entirety to determine whether they fairly and adequately explain the law of the case. State v. Flores, 418 N.W.2d 150, 155 (Minn. 1988). “An instruction is in error if it materially misstates the law.” State v. Kuhnau, 622 N.W.2d 552, 556 (Minn. 2001).

The district court instructed the jury as follows:

A person is in “physical control” of a motor vehicle when the person is present in a vehicle and is in a position to either direct the movement of the vehicle or keep the vehicle in restraint. It is not necessary for the engine to be running in order for the person to be in physical control of a motor vehicle.

Appellant argues that this instruction was improper because the district court failed to include the language recommended by the supreme court in State v. Starfield, 481 N.W.2d 834 (Minn. 1992). In Starfield, the supreme court stated that:

In a case where the State is claiming “physical control” of a disabled motor vehicle, we think the standard JIG instruction on physical control might appropriately be supplemented by an instruction along the following lines:

In considering whether or not the defendant was in physical control of the motor vehicle while under the influence of alcohol, you may consider defendant’s location in or by the vehicle, the location of the ignition keys, whether the defendant had been a passenger in the vehicle before it came to rest, who owned the vehicle, the extent to which the vehicle was inoperable, and whether the vehicle if inoperable might have been rendered operable so as to be a danger to persons or property. You may consider these as well as any other facts or circumstances bearing on whether or not the defendant was then in physical control of a motor vehicle which was or reasonably could become a danger to persons or property while the defendant was under the influence of alcohol.

481 N.W.2d at 839.

Appellant did not object to the jury instruction at trial. The state argues waiver of this issue. See State v. Cross, 577 N.W.2d 721, 726 (Minn. 1998) (stating that a party’s failure to object to a jury instruction at trial generally waives consideration of the issue on appeal). But this court may review the issue for plain error. State v. Griller, 583 N.W.2d 736, 740 (Minn. 1998). For an appellate court to grant relief for “an unobjected-to error, there must be (1) error; (2) that is plain; and (3) the error must affect substantial rights.” Id. If all three prongs of this test are satisfied, the court may “remedy the error to ensure fairness and the integrity of the judicial proceedings.” State v. Ihle, 640 N.W.2d 910, 916 (Minn. 2002).

Here, the district court’s failure to include the language recommended by the supreme court in Starfield does not constitute plain error. Although the supreme court recommended the language cited by appellant, the court specifically noted that the language should be given only “if requested in cases where inoperability is involved.” Starfield, 481 N.W.2d at 839. Appellant had the opportunity to request the aforementioned jury instruction, but failed to make the request. The jury instruction provided by the district court does not materially misstate the law. See Kuhnau, 622 N.W.2d at 556 (stating that an instruction is in error if it materially misstates the law). Because appellant did not request that the language set forth in Starfield be included in the jury instructions, and the instruction provided by the district court did not materially misstate the law, we conclude that the district court did not err in instructing the jury on physical control.

II.

Appellant also contends that the district court erred in failing to instruct the jury on reasonable refusal. But again, appellant did not request such an instruction. Accordingly, we review the issue under the plain error analysis. See Griller, 583 N.W.2d at 740.

Minnesota law provides that in the implied-consent proceeding, “[i]t is an affirmative defense for the petitioner to prove that, at the time of the refusal, the petitioner’s refusal to permit the test was based upon reasonable grounds.” Minn. Stat. § 169A.53, subd. 3(c) (2004). A defendant is entitled to an instruction on his or her theory of the case if there is evidence to support that theory. State v. Ruud, 259 N.W.2d 567, 578 (Minn. 1977). The district court has the discretion to refuse to give a requested jury instruction. State v. Daniels, 361 N.W.2d 819, 831 (Minn. 1985). The district court need only give an instruction if it is warranted by the facts or the relevant law. State v. Holmberg, 527 N.W.2d 100, 106 (Minn. App. 1995), review denied (Minn. Mar. 21, 1995).

Here, appellant did not request an instruction on reasonable refusal and, absent that request, the record is not so straightforward that we can say the district court erred, as a matter of law, by not providing (sua sponte) an unrequested jury instruction.

Affirmed.