Wednesday, August 1, 2012

Minnesota DWI Lawyer Blogs on Minnesota DWI: This Week's Featured Minnesota DWI Case

The Minnesota DWI Case of the week is the Minnesota Court of Appeals decision of State v. Hammann, (Unpublished, decided August 1, 2012) which stands for the proposition that it's not a refusal to submit to alcohol testing if you don't ask the right question.

In  Hammann, the Defendant was arrested for DWI and was taken to the Minnetonka Police Department.  He was read the Minnesota Implied Consent Advisory and was asked to submit to a urine test.  The Defendant asked the officers what types of tests the department offered, and an officer responded, "We're gonna offer you urine or blood...If you won't do urine we're gonna ask you for blood and that's it."  Mr. Hammann then repeatedly asked the officers about various aspects of the implied-consent process and unsuccessfully tried multiple time to call his brother and his attorney.

Approximately 48 minutes after the process began, an officer asked Mr. Hammann multiple times within the course of one minute whether he would take a urine test, and Hammann never directly responded. The officer then stated, "Jerald I will consider you to have refused the test at this point".  The Defendant immediately responded, "I am totally willing to take whatever test is appropriate. " But the officer deemed the Defendant to have refused the test.

The Defendant was convicted of 3rd Degree Refusal to Submit to Testing but on appeal, the Minnesota Court of Appeals reversed the conviction noting:

“Any person who drives . . . a motor vehicle within this state . . . consents . . . to a chemical test of that person’s blood, breath, or urine for the purpose of determining the presence of alcohol,” and “[i]t is a crime for any person to refuse to submit to a chemical test of the person’s blood, breath, or urine.” Minn. Stat. §§ 169A.20, subd. 2, 169A.51, subd. 1(a) (2010)." 

"The peace officer who requires a test pursuant to this section may direct whether the test is of blood, breath, or urine. Action may be taken against a person who refuses to take a blood test only if an alternative test was offered and action may be taken against a person who refuses to take a urine test only if an alternative test was offered
Minn. Stat. § 169A.51, subd. 3 (2010) (emphasis added)." 

The plain language of the statute only allows action to be taken against a person if that person refuses to take a blood or urine test and an “alternative test was offered.” Minn. Stat. § 169A.51, subd. 3. Here, an officer at the beginning of the implied-consent process told appellant: “If you won’t do urine we’re gonna ask you blood and that’s it.” But that statement is not an offer for alternative testing. In the cases where this court has considered a person to have refused chemical testing, the facts suggest that an officer gave the person the option of choosing a blood or urine test. See State v. Ferrier, 792 N.W.2d 98, 100 (Minn. App. 2010) (“[Officer] then asked appellant if she would take a blood or urine test, and appellant chose to take a urine test.”), review denied (Mar. 15, 2011); Busch v. Comm’r of Pub. Safety, 614 N.W.2d 256, 257 (Minn. App. 2000) (“[Officer] then asked Busch if he would take a blood, urine, or breath test, but Busch refused to reply.”).

The Minnesota Court of Appeals in Hammann then held that because the Defendant was not offered an alternative test as required by statute, his test refusal conviction must be reversed.

Moral of the Story:  If they don't ask, it's not a crime to not tell.