The Minnesota DWI Case Of The Week is State v. Kost which stands for the proposition that a defendant's failure to provide adequate samples for a breath test does not automatically constitute a criminal refusal to submit to testing.
In Kost, the defendant was arrested for a DWI and was asked to submit to a Data Master Breath Test at the police station. Ms. Kost agreed to submit to the breath test but when the officer attempted to administer the test, the machine was unable to register an alcohol concentration level. The officer attempted to administer the test a second time, but Kost’s breath sample was again inadequate. He believed that Kost was purposefully providing inadequate breath samples. During the testing process, Kost requested multiple times that another officer be brought in to administer the test because a different officer had been able to successfully administer the PBT before she was arrested; the officer declined her requests. Kost also repeatedly stated that she was not refusing to take a test and offered to provide a blood sample; the officer declined to collect a blood sample.
Ms. Kost was charged with refusal to submit to testing and at trial, the Court gave the following jury instruction:
"A refusal to submit to chemical testing includes any indication of actual unwillingness to complete the testing process, as determined from the driver’s words and actions, in light of the totality of the circumstances. Refusal may be shown in a number of ways, including verbal refusal, nonverbal indication of unwillingness to comply, failure to make a decision, or actions that frustrate the testing process. When a test is administered using an infrared or other approved breath testing instrument, the failure of a person to provide two separate, adequate breath samples in the proper sequence constitutes a refusal."
The defense challenged the instruction arguing that the last sentence only applies to license revocations and is not proper in the criminal case as it negates the willfulness requirement of refusal.
The Minnesota Court of Appeals agreed with the defense and reversed the conviction stating:
"Kost acknowledges that the challenged portion of the instruction was taken directly from Minn. Stat. § 169A.51, subd. 5(c). But she argues that the language of that statute misstates the law for criminal test refusal because it applies only to license-revocation proceedings. The statute provides in relevant part: “For purposes of section 169A.52 (revocation of license for test failure or refusal), when a test is administered using an infrared or other approved breath-testing instrument, failure of a person to provide two separate, adequate breath samples in the proper sequence constitutes a refusal.” Minn. Stat. § 169A.51, subd. 5(c) (emphasis added). The same introductory phrase also appears in the first of the three subsequent provisions, which collectively address when a breath test (as opposed to a sample) is deficient and when a deficient test constitutes refusal. Id., subd. 5(d)-(f) (2022). Kost argues that this introductory phrase means that the failure to provide two separate, adequate breath samples constitutes refusal as a matter of law only in license-revocation cases."
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"The statutory provision on its face includes the qualifying language that the failure to provide two separate, adequate breath samples constitutes a refusal “[f]or purposes of section 169A.52 (revocation of license for test failure or refusal).” Minn. Stat. § 169A.51, subd. 5(c). This case is not a license-revocation proceeding under Minn. Stat. § 169A.52 (2022); it is a criminal prosecution for test refusal under Minn. Stat. §§ 169A.20, subd. 2(1), .25, subd. 1(b) (2022). Accordingly, Minn. Stat. § 169A.51, subd. 5(c), does not apply."
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"In Ferrier, we held that a conviction of test refusal “requires proof of a volitional act that indicates unwillingness to submit to a test,” and that such “actual unwillingness” may be determined from the driver’s words and actions in light of the totality of the circumstances. Ferrier, 792 N.W.2d at 99, 102. Kost argues that, while the district court accurately recited the actual-unwillingness standard to the jury, it then negated that standard by instructing the jury that failure to provide two separate, adequate breath samples constitutes test refusal as a matter of law. Again, we agree. The latter instruction effectively directs a guilty verdict if a driver fails to provide two breath samples that the testing machine registers as adequate, even if other circumstances indicate that the driver was not actually unwilling to submit to testing."
"In sum, because Minn. Stat. § 169A.51, subd. 5(c), does not apply in this criminal test-refusal case, and instructing the jury with that statute’s language negated the actual- unwillingness standard that does apply, we conclude that the challenged jury instruction materially misstated the law regarding criminal test refusal."
Moral Of The Story: Just because you are not a blowhard does not mean that you have refused testing.
If you or a loved one have been charged with a Minnesota DWI, feel free to contact Minneapolis DWI Lawyer, F. T. Sessoms at (612) 344-1505 for answers to all of your Minnesota DWI and DUI questions.
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