STATE OF MINNESOTA

IN COURT OF APPEALS

A06-1739

State of Minnesota,
Respondent,

vs.

William Scott Fraser,
Appellant.

Filed September 4, 2007

Affirmed

Minge, Judge

Polk County District Court

File No. KX-06-000020

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

Greg Widseth, Polk County Attorney, 223 East Seventh Street, Suite 101, Crookston, MN 56716 (for respondent)

Samuel A. McCloud, Carson J. Heefner, Suite 1000, Circle K, P.O. Box 216, Shakopee, MN 55379 (for appellant)

Considered and decided by Wright, Presiding Judge; Minge, Judge; and Worke, Judge.

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

MINGE, Judge

Appellant challenges his conviction of third-degree driving while impaired, arguing that a deputy sheriff wrongfully obtained his blood sample and, therefore, that the district court erred by admitting blood-test evidence. We affirm.

FACTS

Appellant William Fraser was involved in a single-vehicle automobile accident in Polk County. An ambulance took appellant from the scene to a hospital for treatment. A deputy from the Polk County Sheriff’s Department arrived at the hospital to interview appellant. The deputy smelled an odor of alcohol on appellant and noticed that appellant’s eyes were bloodshot and that his speech was slurred. These observations were consistent with reports the deputy had received from the responding emergency-medical personnel.

The deputy asked appellant to take a preliminary breath test (PBT). Appellant agreed, and the breath test indicated that his alcohol concentration was .226. The deputy read appellant the implied-consent advisory. Appellant asked to speak with an attorney. Although medical personnel interrupted appellant’s telephone call with the attorney to administer treatment, appellant was able to call back. After appellant finished consulting with his attorney, the deputy asked appellant if he would submit to a blood test. Appellant agreed. Appellant’s blood test showed that he had an alcohol concentration of .18. He was subsequently charged with third-degree driving while impaired, in violation of Minn. Stat. งง 169A.20, subd. 1(1), .26 (2004), a gross misdemeanor due to a prior driving-while-impaired conviction.

Appellant filed a motion to suppress the blood-test evidence on various grounds. The district court denied appellant’s motion, holding that appellant voluntarily consented to both the PBT and the subsequent blood test. Appellant submitted the matter to the district court on a stipulated record, which included the blood-test evidence, under the procedure in State v. Lothenbach, 296 N.W.2d 854 (Minn. 1980). The district court convicted appellant as charged. This appeal followed.

D E C I S I O N

The issue in this case is whether the district court erred by admitting the blood-test evidence. “When reviewing pretrial orders on motions to suppress evidence, we may independently review the facts and determine, as a matter of law, whether the district court erred in suppressing – or not suppressing – the evidence.” State v. Harris, 590 N.W.2d 90, 98 (Minn. 1999); but see State v. Dezso, 512 N.W.2d 877, 880 (Minn. 1994) (stating that whether a person’s consent is voluntary is a factual determination); State v. Alayon, 459 N.W.2d 325, 330 (Minn. 1990) (stating that we will reverse a district court’s finding that consent was voluntary only if it appears unequivocally that the finding was clearly erroneous).

The Minnesota Supreme Court has expressed a “concern that law enforcement officials not mislead individuals with respect to their obligation to undergo blood alcohol content testing.” McDonnell v. Comm’r of Pub. Safety, 473 N.W.2d 848, 853 (Minn. 1991). “[D]ue process does not permit those who are perceived to speak for the state to mislead individuals as to either their legal obligations or the penalties they might face should they fail to satisfy those obligations.” Id. at 854. Coercion occurs when an individual’s “will has been overborne and his capacity for self-determination critically impaired.” Schneckloth v. Bustamonte, 412 U.S. 218, 225, 93 S. Ct. 2041, 2047 (1973).

At the omnibus hearing, appellant testified that he agreed to take the blood test after

[t]he officer approached me and said that – asked me if I would be willing to take this test and stated that it would be a good thing if I took the test because I had – would be sitting in jail. I would go to jail if I didn’t take the test. And being that it was a long weekend and with the condition I was in with the injuries that I had sustained, that it might make for a little bit discomfort – a lot of discomfort in there.

The deputy testified that he read appellant the implied-consent advisory; that appellant indicated that he understood; that when appellant asked to speak with an attorney, he was provided with a telephone; and that when asked to take the blood test, appellant agreed. The deputy testified that he did not recall a conversation about the failure to take the test. The district court essentially credited the deputy’s recollection of the events and rejected appellant’s conflicting testimony. The district court concluded that appellant voluntarily consented to the blood test and denied appellant’s motion to suppress. Because the district court was in a superior position to evaluate the credibility of both witnesses, we defer to its credibility determinations. State v. Kramer, 668 N.W.2d 32, 37-38 (Minn. App. 2003), review denied (Minn. Nov. 18, 2003). Based on our review of the record, we conclude that the district court did not err in its factual determination that appellant voluntarily consented to the blood test.

Appellant also argues that the deputy wrongfully influenced him by representing that he would spend the weekend in jail if he refused to allow the test. Appellant contends that based on this comment, he was actively “misled” and “coerced” into submitting to a blood test. Given appellant’s previous DWI conviction, his refusal to submit to the blood test would have elevated the offense to a second-degree DWI. Minn. Stat. งง 169A.095, .25, subd. 1(b) (2004). Under such circumstances, Minnesota law requires the peace officer to arrest the individual. Minn. Stat. ง 169A.40, subd. 3(1) (2004). Even if the deputy made these alleged statements, they were not misleading.

Finally, appellant claims that the deputy wrongfully failed to offer him an alternative to the blood test. Minnesota law provides that “[t]he peace officer who requires a [chemical] test . . . may direct whether the test is of blood, breath, or urine.” Minn. Stat. ง 169A.51, subd. 3 (2004). The peace officer need offer “an alternative test” only if the person “refuses to take a blood test.” Id. But because appellant did not refuse to submit to a blood test, the deputy was not required to offer an alternative test. Therefore, the district court properly admitted the blood-test evidence.

Affirmed.

Dated: