The Minnesota DWI Case Of The Week is State v. Hower (Decided September 26, 2022, Minnesota Court of Appeals, Unpublished) which stands for the proposition that refusal to submit to testing can be by words or conduct.
In Hower, the Defendant was convicted of felony DWI by a jury. The facts showed that in November 2020, a law-enforcement officer responded to a call that a pickup truck had crashed in a ditch and arrived to find Hower asleep in the driver’s seat. The officer questioned Hower about what happened, and Hower—who is unable to speak—reacted by motioning to his leg, which the officer interpreted to mean that Hower’s leg was in pain. The responding officer testified at trial that he believed Hower was intoxicated based on the smell of alcoholic beverages, Hower’s inability to stand or walk, his bloodshot, watery eyes, and empty beer cans along with an opened, partially empty bottle of liquor on the floor of the truck’s passenger seat. An ambulance transported Hower to the hospital.
The police obtained a search warrant for the Defendant's blood or urine and told Hower repeatedly that he could nod or shake his head in response to the question of how he preferred to provide a sample for testing.
At first, Hower did not respond to the officer’s questions. The officer asked Hower several more times if he would provide a blood or urine sample and continued to repeat that it was a crime to refuse. After the officer repeated his questions and tried to get Hower’s attention, Hower gestured to the officer, who gave Hower a pen and paper. Hower then wrote a few words, such as, “for watt,” which the officer interpreted to mean Hower was asking why the officer needed a blood or urine sample; “Scott driving, not me,” which the officer interpreted to mean Hower was saying someone named Scott was driving the truck when it crashed; and “hospital,” to which the officer responded by telling Hower that he was in the hospital to get his leg examined. The officer then asked again how Hower would like to complete the chemical test, and Hower wrote, “P,” which the officer took to mean Hower would provide a urine sample.
The officer left to retrieve a urine-testing kit. When the officer returned with the kit, he tried to get Hower’s attention by repeatedly saying his name. Hower did not respond and appeared to be asleep. The officer reminded Hower that if he did not respond, it would be a refusal. Hower then appeared to wake up. The officer asked Hower if he would “pee in a cup” and told Hower that if he kept “messing around,” the officer would consider it to be a test refusal. The officer again repeated Hower’s name, asked several more times if Hower was going to take the test, asked Hower to open his eyes, and told Hower to nod his head yes or no. Hower motioned to his leg. The officer told Hower that on initial review, the medical staff had not identified anything wrong with Hower’s leg. The officer yet again asked Hower whether he was going to take the test, and Hower did not respond; the officer said, “See, you stop answering me when I ask those questions.” Moments later, medical staff wheeled Hower into an exam room. The officer testified at trial that he considered Hower to have refused to test once the medical-staff member came to get him; therefore, the officer did not make any additional attempts to secure a sample after that time.
Defendant argues that the evidence supporting his conviction for test refusal was insufficient, and both parties agree that the evidence of the refusal was primarily circumstantial. Appellate courts apply greater scrutiny when assessing the sufficiency of circumstantial evidence.
The Court of Appeals affirmed the conviction, noting:
"To sustain a conviction based on circumstantial evidence, the reasonable inferences that can be drawn from the circumstances proved as a whole must be consistent with the hypothesis that the accused is guilty and inconsistent with any rational hypothesis except that of guilt.” Id. at 598 (quotation omitted). This court first identifies the circumstances proved, with the assumption that the jury rejected evidence in the record that is inconsistent with its verdict. Hanson, 800 N.W.2d at 622. Second, we examine the reasonableness of all inferences that might be drawn from the circumstances proved, including inferences consistent with a hypothesis other than guilt. Id. If there are no reasonable, rational inferences that are inconsistent with guilt, this court should affirm the conviction. Id."
"Based on the evidence here, the state proved the following circumstances: (1) Hower initially did not respond to the officer’s request for a chemical test; (2) Hower then appeared to agree to submit to a urine test; (3) when the officer returned with a kit to begin the process of administering the urine test, Hower appeared to be asleep; (4) after the officer reminded Hower that if he did not respond, it would be a test refusal, Hower appeared to wake up; (5) Hower then refused to communicate nonverbally as he had communicated with the officer before; and (6) Hower once again did not respond to the officer’s request to complete a urine test. These circumstances are consistent with Hower indicating an actual unwillingness to submit to the test. See Ferrier, 792 N.W.2d at 102 (deeming that failure to produce urine for testing after verbally agreeing to test was sufficient circumstantial evidence of actual unwillingness to submit to testing)."
"Hower, however, argues that there are other reasonable inferences based on these circumstances, including that he was not unwilling to test but simply unable to communicate because after he wrote, “P,” the pen and paper were taken away, and alternatively, that he was willing to do a urine test but did not want to do so in the public waiting area. Hower also argues that there was no requirement to consent to the test a second time after he had written, “P.” Ultimately, he argues, it is a reasonable inference that it was the officer’s failure to administer the test, not Hower’s failure to comply with the test, that frustrated the testing process."
"Hower’s proffered inferences are unreasonable based on the circumstances proved. The testimony and body-camera footage presented at trial support the inference that Hower demonstrated a clear disinterest in participating in the urine test. Hower’s argument that the removal of his pen and paper meant that he could no longer participate in testing is contradicted by the officer’s body-camera footage showing that Hower motioned with his head and his hands in response to other questions the officer asked. A driver’s refusal to submit to testing includes indicating, through words or actions, an “actual unwillingness to participate in the testing process,” even after initially consenting to a test."
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"The record here includes evidence showing that after appearing to agree to a chemical test, Hower ignored the officer once he returned with the test kit and did not respond to questions about taking the test even as he responded nonverbally to other questions the officer asked. These circumstances support a reasonable, rational inference that Hower was indicating an actual unwillingness to participate in the testing process. We conclude that, when viewed in the light most favorable to the verdict, sufficient evidence exists in the record to support Hower’s conviction for refusal to submit to chemical testing."
Moral Of The Story: You can still refuse even if you cannot speak.
If you or a loved one have been charged with a Minnesota DWI, feel free to contact Minnesota DWI Lawyer, F. T. Sessoms at (612) 344-1505 for answers to all of your Minnesota DWI and DUI questions.
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