The Minnesota DWI Case Of The Week is State v. Kube (Decided February 5, 2018, Minnesota Court of Appeals, Unpublished) which stands for the proposition that a person does not have to expressly refuse to submit to testing in order to commit the crime of refusal if the person's conduct indicates they are unwilling to continue with the testing procedure.
In Kube, the Defendant was arrested in Carver County for DWI and was read the Minnesota Implied Consent Advisory after being taken to the county jail. Ms. Kube was emotional and distraught throughout the advisory process.
The arresting officer provided Ms. Kube with telephone books to call an attorney, and she insisted that, because she has Asperger's syndrome, which is an autism spectrum disorder, she needed an attorney who represents disabled people. Kube eventually contacted an attorney's answering service. When she hung up, she remarked that her cell phone "only works half of the time," so the officer advised her to call back and leave the jail telephone number. Kube became "emotionally overwrought."
The arresting officer advised her that failing to make a decision would be considered a test refusal. Instead of calling the answering service again, Kube threatened to kill herself, demanded to be taken to the hospital, and asked if she could go to the psych ward. Dascher terminated the implied-consent advisory, and Kube was charged with test refusal.
Ms. Kube waived her right to a jury trial and was found guilty by the district court of the crime of refusal to submit to chemical testing. On appeal she argued (among other things) that she did not refuse to submit to testing because the officer never asked her to take the breath test.
The Minnesota Court of Appeals affirmed her conviction noting:
"Under Minn. Stat. § 169A.20, subd. 2 (2014), it is a crime for any person who drives a motor vehicle in Minnesota to refuse to submit to chemical testing. When a person does not make an explicit verbal refusal to submit to chemical testing, the state must rely on circumstantial evidence to establish the person's intent. See State v. Ferrier, 792 N.W.2d 98, 101-02 (Minn. App. 2010) (recognizing the legitimacy of circumstantial evidence to establish intent in a test-refusal case), review denied (Minn. Mar. 15, 2011). "[Refusal to submit to chemical testing includes any indication of actual unwillingness to participate in the testing process, as determined from the driver's words and actions in light of the totality of the circumstances." Id. at 102."
The Minnesota Court of Appeals then held:
"The inference that Dascher ended the advisory process before Kube demonstrated her actual unwillingness to submit to testing is also unreasonable. Dascher advised Kube that she could discuss her disabilities with an attorney and that she could use the jail telephone number to receive a return call, but, rather than making another call to reach an attorney, Kube asked to be taken to a psych ward. That conduct indicated an actual unwillingness to participate in the testing process, and Dascher ended the advisory process only after he observed the conduct." Conviction affirmed!
Moral Of The Story: There is more than one way to say "no".
If you or a loved one are facing a Minnesota DWI, feel free to contact Minnesota DWI Attorney, F. T. Sessoms for answers to all of your Minnesota DWI and DUI questions.
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