The Minnesota DWI Case Of The Week is Lorsung v. Commissioner of Public Safety (Decided December 30, 2024, Minnesota Court of Appeals, Unpublished) which stands for the proposition that if an officer's suspicion of intoxication has been dispelled, he may not subsequently administer a preliminary breath test and the arrest of the petitioner is illegal.
In Lorsung, Officer Sonterre of the New Brighton police responded to a reported automobile collision in a bar parking lot. Officer Sonterre learned that Melissa Lorsung had been backing out of her parking spot when her car bumped an apparently intoxicated pedestrian. The officer also learned that Lorsung had been drinking inside the bar and had left the bar around closing time. Lorsung was smoking a cigarette when Officer Sonterre first approached her. He did not smell alcohol on her breath or observe any of the typical tell-tale signs of alcohol impairment, like bloodshot and watery eyes, unstable balance, or slurred speech.
Officer Sonterre directed Lorsung to perform the horizontal gaze nystagmus test. Officer Sonterre noticed no indication of impairment during the test.
Officer Paul Yang then spoke with Lorsung. Officer Yang, who waited with Lorsung and spent more time near her than Officer Sonterre, also did not observe bloodshot or watery eyes, slurred speech, or the odor of alcoholic beverages. Lorsung said, “[W]e’re free to leave, I guess.” He watched Lorsung move her car about three feet out of the way and into a parking spot, which he later said he would not have allowed had he believed she was impaired. Officer Yang told Lorsung that he didn’t want to keep her and asked if she had any questions before she left.
Officer Sonterre spoke with his supervising sergeant. Officer Sonterre told the sergeant that Lorsung was not drunk, and he agreed that it appeared that an impaired pedestrian had walked into the car of a sober driver. But the pedestrian and her family were still present, and Officer Sonterre said that he would administer another sobriety test before allowing Lorsung to leave, reasoning, “[S]o they can’t say I didn’t do my job.”
The preliminary breath test revealed an alcohol concentration level of .145 and Ms. Lorsung was placed under arrest. A subsequent Data Master breath test revealed Ms. Lorsung was over the legal limit and her driver's license was subsequently revoked.
Ms. Lorsung challenged the revocation in district court arguing the officer lacked a "reasonable suspicion" to administer the preliminary breath test. The District Court upheld the revocation but on appeal, the Minnesota Court of Appeals reversed the District Court stating:
"[B]efore an officer may ask a driver to submit to a PBT, he must have a reasonable suspicion to believe that the driver is impaired. Minn. Stat. § 169A.41, subd. 1 (Supp. 2023); see Sarberv. Comm ’r of Pub. Safety, 819N.W.2d465 (Minn. App. 2012) (reversing an implied-consent license revocation where the officer lacked reasonable suspicion for the investigation). Because the exclusionary rule requires the district court to suppress the results of a PBT administered without reasonable suspicion, see State v. Diede, 795 N. W.2d 836, 842 (Minn. 2011), we must consider whether the district court properly concluded that the officer had reasonable suspicion to ask Lorsung to perform the PBT."
"Our review leads us to disagree with the district court’s determination. We review “a district court’s determination of reasonable suspicion de novo” and “accept[] the district court’s factual findings unless they are clearly erroneous.” Kruse v. Comm ’r of Pub. Safety, 906 N.W.2d 554, 557 (Minn. App. 2018). Reasonable suspicion requires a particularized and objective basis to suspect a driver of criminal activity considering the totality of the circumstances. State v. Anderson, 683 N.W.2d 818, 822-23 (Minn. 2004); State v. Taylor, 965 N.W.2d 747, 752 (Minn. 2021). We understand that, after Officer Sonterre began his investigation, he had reason to suspect that Lorsung had been driving while impaired. He knew that she had been drinking and that she had backed into a pedestrian in the parking lot of a bar at closing time. Even with no other indicia of impairment, a reasonable officer would suspect—as the officer here initially suspected—that Lorsung was impaired. But Officer Sonterre did not ask Lorsung to perform a PBT when he first suspected her impairment. He used other means to test his suspicion. He looked for signs of impairment in her balance, in the condition of her eyes, and in her speech. He testified at the implied- consent hearing that none of his observations of those things supported the idea that she was impaired. He then directed Lorsung to perform the horizontal gaze nystagmus test. And his observation of her performance on that test combined with the accident investigation and his ongoing observations of Lorsung led him to believe, contrary to his initial suspicion, that he had apparently encountered a case of a drunk pedestrian walking into the car of a sober driver. Corroborating Officer Sonterre’s belief, Officer Yang, who observed Lorsung the longest, also thought that she was not impaired."
"The commissioner emphasizes the circumstances preceding the officer’s no longer reasonably suspecting Lorsung’s impairment. But the totality of circumstances includes an officer’s consideration of new information that tends to dispel previous reasonable suspicion. This is because police intrusions after their reasonable suspicion has been dispelled are unconstitutional. State v. Pleas, 329 N.W.2d 329, 332 (Minn. 1983); State v. Hickman, 491 N.W.2d 673, 675 (Minn. App. 1992), rev. denied (Minn. Dec. 15, 1992). The commissioner does not identify, and the district court did not find, any indicia of Lorsung’s intoxication that any officer observed between the time of the horizontal gaze nystagmus test and the time Officer Sonterre reapproached to ask her to perform the PBT. We have no difficulty concluding that a reasonable officer in Officer Sonterre’s shoes would have reasonably suspected, just as the officers here reasonably suspected, that Lorsung was not impaired when Officer Sonterre asked her to perform the PBT. Because the information available to the officers in the developing investigation would have dispelled (and did dispel) their objective reasonable suspicion that Lorsung was impaired, Officer Sonterre lacked reasonable suspicion to request the test."
"We are also unpersuaded by the commissioner’s argument that Officer Sonterre’s decision not to dismiss Lorsung shows that his reasonable suspicion had not been dispelled. The argument glosses over three important facts. The first is that Officer Sonterre is trained to notice signs of intoxication. The second is that he was satisfied that Lorsung was not impaired. And the third and most important is that the reason he did not dismiss Lorsung before he requested the PBT was not because he suspected that she was impaired but because he sought to confirm his contrary suspicion for the sake of demonstrating a thorough review for the struck pedestrian and her family."
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"Officer Sonterre ended his impaired-driving investigation after Lorsung successfully completed the nystagmus test, and his reason for asking for the PBT was not based on his reasonable suspicion of her impairment but instead on his reasoned suspicion of her nonimpairment. The officer had no basis to request a subsequent chemical test. We reverse the commissioner’s decision to revoke Lorsung’s driving privileges."
MORAL OF THE STORY: You can't be tested if you are above suspicion.
If you or a loved one have been charged with a Minnesota DWI, feel free to contact Minnesota DWI Attorney, F. T. Sessoms at (612) 344-1505 for answers to all of your Minnesota DWI and DUI questions.
