This opinion will be unpublished and may not be cited except as provided by Minn. Stat. § 480A.08, subd. 3 (2012).
STATE OF MINNESOTA IN COURT OF APPEALS A13-2108
Adam Perry Schroll, petitioner, Appellant,
vs.
Commissioner of Public Safety, Respondent.
Filed July 28, 2014 Affirmed Bjorkman, Judge
Hennepin County District Court File No. 27-CV-13-9281
Howard Bass, Bass Law Firm, PLLC, Burnsville, Minnesota (for appellant)
Lori Swanson, Attorney General, Jeffrey S. Bilcik, Assistant Attorney General, St. Paul, Minnesota (for respondent)
Considered and decided by Ross, Presiding Judge; Bjorkman, Judge; and Huspeni,
Judge.
Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to Minn. Const. art. VI, § 10. UNPUBLISHED OPINION
BJORKMAN, Judge
Appellant challenges the revocation of his driver’s license, arguing that (1) he did
not refuse chemical testing, or alternatively, his refusal was reasonable; and (2) the
implied-consent law is unconstitutional. We affirm.
FACTS
At approximately midnight on May 3, 2013, Sergeant David Riegert of the
Minnetonka City Police Department stopped appellant Adam Schroll for speeding.
Schroll had bloodshot, watery eyes, emitted an odor of alcohol, slurred his speech,
displayed poor balance, and admitted to consuming alcohol. His preliminary breath test
showed an alcohol concentration in excess of the legal limit. Sergeant Riegert arrested
Schroll for driving while impaired and read him the implied-consent advisory. Schroll
indicated that he understood the advisory and wanted to consult an attorney. While on
the telephone with his attorney, he requested a pen and paper to write down the advice he
received.
When Sergeant Riegert asked if Schroll would submit to a breath test, he
responded by reading what he had written:
I want to cooperate with the process and am not refusing testing but . . . upon advice of counsel I need to see a search warrant before submitting a breath, blood or urine sample based on McNeely versus Missouri and the Fourth Amendment and Article One, Section Ten of the Minnesota Constitution.
2 Sergeant Riegert again asked Schroll if he would take a breath test and told him he
needed a yes or no answer. Schroll asked to call his attorney back and was permitted to
do so. Schroll then stated that he would take a breath test when he saw a valid warrant
pursuant to McNeely. Sergeant Riegert responded that McNeely does not apply to breath
tests. Schroll replied that his counsel told him differently, and wanted to speak with his
attorney again. Sergeant Riegert denied the request. Sergeant Riegert again asked
Schroll if he would take a breath test, Schroll replied he would if he saw a warrant and
Sergeant Riegert told him “I’m not gonna give you a search warrant, so that’s a no.” In
total, Sergeant Riegert asked Schroll six times if he would submit to a breath test; each
time Schroll indicated he wanted to see a warrant.
Pursuant to Minnesota’s implied-consent law, respondent Minnesota
Commissioner of Public Safety revoked Schroll’s driver’s license. Schroll petitioned the
district court to review the revocation. The district court denied the petition and Schroll
now appeals.
DECISION
A law-enforcement officer may request that a driver submit to a chemical test of
the person’s blood, breath, or urine, if the officer has “probable cause to believe the
person was driving, operating, or in physical control of a motor vehicle” while impaired.
Minn. Stat. § 169A.51, subd. 1(b) (2012). But if a person refuses to submit to chemical
testing, “a test must not be given.” Minn. Stat. § 169A.52, subd. 1 (2012); see also State
v. Brooks, 838 N.W.2d 563, 571 (Minn. 2013) (“If a driver refuses the test, the police are
required to honor that refusal and not perform the test.”), cert. denied, 134 S. Ct. 1799
3 (2014). A consequence of such a refusal, however, is that the commissioner of public
safety will temporarily revoke the person’s driver’s license. Minn. Stat. § 169A.52, subd.
3(a) (2012).
I. Schroll refused to submit to testing, and his refusal was not reasonable.
Generally, whether a person refused testing and whether that refusal was
reasonable are questions of fact that we review for clear error. Maietta v. Comm’r of
Pub. Safety, 663 N.W.2d 595, 598 (Minn. App. 2003), review denied (Minn. Aug. 19,
2003). But where, as here, there is no factual dispute, the legal significance of the facts is
a question of law, which we review de novo. Id.
A. Schroll refused to submit to testing.
A driver’s refusal to submit to chemical testing may be demonstrated by words or
by conduct. State v. Ferrier, 792 N.W.2d 98, 102 (Minn. App. 2010), review denied
(Minn. Mar. 15, 2011). A refusal occurs when a driver imposes his own conditions on
the test. Mahanke v. Comm’r of Pub. Safety, 395 N.W.2d 437, 438 (Minn. App. 1986).
Schroll argues that he did not refuse to submit to testing, citing his repeated
statements that he would take a breath test if he saw a search warrant. We disagree. In
Mahanke, the driver repeatedly told the officer that she “would do whatever was required
of her by the laws of the State of Minnesota” but wanted to see a written statement from
the hospital that the syringe used to take her blood was “sterile and free of AIDS.” 395
N.W.2d at 437-38. The district court held that Mahanke’s placement of a condition on
the blood test was not a refusal. We reversed, reasoning that when offered a blood or
urine test, “a driver has three choices: a blood test, a urine test, or refusing to take a test,”
4 and that by not choosing either test, as offered, Mahanke “clearly chose not to submit to
testing. Id. at 438. As in Mahanke, Schroll’s expressed agreement to submit to testing
was conditioned on his own term—that the officer first obtain a warrant. This constitutes
refusal to submit to testing.
B. Schroll’s refusal was not reasonable.
A driver may prove as an affirmative defense that his refusal to submit to testing
was reasonable. Minn. Stat. § 169A.53, subd. 3(c) (2012). A driver’s confusion “with
respect to his rights or the consequences of his decision not to submit to testing,” may
provide a reasonable basis to refuse a test. Maietta, 663 N.W.2d at 599. Refusal “may be
reasonable if the police have misled a driver into believing a refusal was reasonable or if
the police have made no attempt to explain to a confused driver his obligations.” Frost v.
Comm’r of Pub. Safety, 401 N.W.2d 454, 456 (Minn. App. 1987). But receiving
incorrect advice from an attorney does not make a refusal reasonable. Haug v. Comm’r
of Pub. Safety, 473 N.W.2d 900, 902 (Minn. App. 1991).
Schroll first argues that his refusal was reasonable because he was confused by the
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This opinion will be unpublished and may not be cited except as provided by Minn. Stat. § 480A.08, subd. 3 (2012).
STATE OF MINNESOTA IN COURT OF APPEALS A13-2108
Adam Perry Schroll, petitioner, Appellant,
vs.
Commissioner of Public Safety, Respondent.
Filed July 28, 2014 Affirmed Bjorkman, Judge
Hennepin County District Court File No. 27-CV-13-9281
Howard Bass, Bass Law Firm, PLLC, Burnsville, Minnesota (for appellant)
Lori Swanson, Attorney General, Jeffrey S. Bilcik, Assistant Attorney General, St. Paul, Minnesota (for respondent)
Considered and decided by Ross, Presiding Judge; Bjorkman, Judge; and Huspeni,
Judge.
Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to Minn. Const. art. VI, § 10. UNPUBLISHED OPINION
BJORKMAN, Judge
Appellant challenges the revocation of his driver’s license, arguing that (1) he did
not refuse chemical testing, or alternatively, his refusal was reasonable; and (2) the
implied-consent law is unconstitutional. We affirm.
FACTS
At approximately midnight on May 3, 2013, Sergeant David Riegert of the
Minnetonka City Police Department stopped appellant Adam Schroll for speeding.
Schroll had bloodshot, watery eyes, emitted an odor of alcohol, slurred his speech,
displayed poor balance, and admitted to consuming alcohol. His preliminary breath test
showed an alcohol concentration in excess of the legal limit. Sergeant Riegert arrested
Schroll for driving while impaired and read him the implied-consent advisory. Schroll
indicated that he understood the advisory and wanted to consult an attorney. While on
the telephone with his attorney, he requested a pen and paper to write down the advice he
received.
When Sergeant Riegert asked if Schroll would submit to a breath test, he
responded by reading what he had written:
I want to cooperate with the process and am not refusing testing but . . . upon advice of counsel I need to see a search warrant before submitting a breath, blood or urine sample based on McNeely versus Missouri and the Fourth Amendment and Article One, Section Ten of the Minnesota Constitution.
2 Sergeant Riegert again asked Schroll if he would take a breath test and told him he
needed a yes or no answer. Schroll asked to call his attorney back and was permitted to
do so. Schroll then stated that he would take a breath test when he saw a valid warrant
pursuant to McNeely. Sergeant Riegert responded that McNeely does not apply to breath
tests. Schroll replied that his counsel told him differently, and wanted to speak with his
attorney again. Sergeant Riegert denied the request. Sergeant Riegert again asked
Schroll if he would take a breath test, Schroll replied he would if he saw a warrant and
Sergeant Riegert told him “I’m not gonna give you a search warrant, so that’s a no.” In
total, Sergeant Riegert asked Schroll six times if he would submit to a breath test; each
time Schroll indicated he wanted to see a warrant.
Pursuant to Minnesota’s implied-consent law, respondent Minnesota
Commissioner of Public Safety revoked Schroll’s driver’s license. Schroll petitioned the
district court to review the revocation. The district court denied the petition and Schroll
now appeals.
DECISION
A law-enforcement officer may request that a driver submit to a chemical test of
the person’s blood, breath, or urine, if the officer has “probable cause to believe the
person was driving, operating, or in physical control of a motor vehicle” while impaired.
Minn. Stat. § 169A.51, subd. 1(b) (2012). But if a person refuses to submit to chemical
testing, “a test must not be given.” Minn. Stat. § 169A.52, subd. 1 (2012); see also State
v. Brooks, 838 N.W.2d 563, 571 (Minn. 2013) (“If a driver refuses the test, the police are
required to honor that refusal and not perform the test.”), cert. denied, 134 S. Ct. 1799
3 (2014). A consequence of such a refusal, however, is that the commissioner of public
safety will temporarily revoke the person’s driver’s license. Minn. Stat. § 169A.52, subd.
3(a) (2012).
I. Schroll refused to submit to testing, and his refusal was not reasonable.
Generally, whether a person refused testing and whether that refusal was
reasonable are questions of fact that we review for clear error. Maietta v. Comm’r of
Pub. Safety, 663 N.W.2d 595, 598 (Minn. App. 2003), review denied (Minn. Aug. 19,
2003). But where, as here, there is no factual dispute, the legal significance of the facts is
a question of law, which we review de novo. Id.
A. Schroll refused to submit to testing.
A driver’s refusal to submit to chemical testing may be demonstrated by words or
by conduct. State v. Ferrier, 792 N.W.2d 98, 102 (Minn. App. 2010), review denied
(Minn. Mar. 15, 2011). A refusal occurs when a driver imposes his own conditions on
the test. Mahanke v. Comm’r of Pub. Safety, 395 N.W.2d 437, 438 (Minn. App. 1986).
Schroll argues that he did not refuse to submit to testing, citing his repeated
statements that he would take a breath test if he saw a search warrant. We disagree. In
Mahanke, the driver repeatedly told the officer that she “would do whatever was required
of her by the laws of the State of Minnesota” but wanted to see a written statement from
the hospital that the syringe used to take her blood was “sterile and free of AIDS.” 395
N.W.2d at 437-38. The district court held that Mahanke’s placement of a condition on
the blood test was not a refusal. We reversed, reasoning that when offered a blood or
urine test, “a driver has three choices: a blood test, a urine test, or refusing to take a test,”
4 and that by not choosing either test, as offered, Mahanke “clearly chose not to submit to
testing. Id. at 438. As in Mahanke, Schroll’s expressed agreement to submit to testing
was conditioned on his own term—that the officer first obtain a warrant. This constitutes
refusal to submit to testing.
B. Schroll’s refusal was not reasonable.
A driver may prove as an affirmative defense that his refusal to submit to testing
was reasonable. Minn. Stat. § 169A.53, subd. 3(c) (2012). A driver’s confusion “with
respect to his rights or the consequences of his decision not to submit to testing,” may
provide a reasonable basis to refuse a test. Maietta, 663 N.W.2d at 599. Refusal “may be
reasonable if the police have misled a driver into believing a refusal was reasonable or if
the police have made no attempt to explain to a confused driver his obligations.” Frost v.
Comm’r of Pub. Safety, 401 N.W.2d 454, 456 (Minn. App. 1987). But receiving
incorrect advice from an attorney does not make a refusal reasonable. Haug v. Comm’r
of Pub. Safety, 473 N.W.2d 900, 902 (Minn. App. 1991).
Schroll first argues that his refusal was reasonable because he was confused by the
conflicting advice he received from his attorney and from the police. We are not
persuaded. While an officer may not mislead a driver about the statutory obligation to
submit to testing, that is not what occurred here. See, e.g., McDonnell v. Comm’r of Pub.
Safety, 473 N.W.2d 848, 854 (Minn. 1991). Sergeant Riegert told Schroll that refusal to
submit to testing is a crime and that the law does not require a search warrant. Schroll’s
attorney provided conflicting information—that a warrant is required—that ultimately
proved to be incorrect. See Brooks, 838 N.W.2d at 568 (“[P]olice do not need a warrant
5 if the subject of the search consents.”). Sergeant Riegert did not mislead Schroll into
believing that refusal based on his attorney’s advice would be reasonable, and Schroll had
two opportunities to speak with an attorney to clarify any confusion. As we highlighted
in Maietta, “an attorney, not a police officer, is the appropriate source of legal advice to
clear up confusion because an attorney functions as an objective advisor who could
explain the alternative choices to the confused driver.” 663 N.W.2d at 599.
Schroll next asserts that his attorney’s advice was correct, because McNeely
requires a warrant for breath tests. See Missouri v. McNeely, 133 S. Ct. 1552 (2013). But
our supreme court rejected this argument in Brooks. 838 N.W.2d at 568. On this
undisputed record, we conclude that Schroll’s refusal to submit to testing was not
reasonable.
II. The implied-consent law is not unconstitutional.
The constitutionality of a statute is a question of law, which we review de novo.
State v. Melde, 725 N.W.2d 99, 102 (Minn. 2006). We presume that statutes are
constitutional and will strike down a statute only if absolutely necessary. State v.
Wiseman, 816 N.W.2d 689, 692 (Minn. App. 2012), cert denied, 133 S. Ct. 1585 (2013).
The challenging party must demonstrate “beyond a reasonable doubt that the statute
violates a constitutional provision.” Id.
Schroll argues that the implied-consent law is unconstitutional because it
“condition[s] driving privileges on an unconstitutional warrantless search” and because it
criminalizes the valid exercise of a driver’s Fourth Amendment rights. We address each
argument in turn.
6 This court recently rejected Schroll’s unconstitutional-conditions argument in
Stevens v. Comm’r of Pub. Safety, ___ N.W.2d ___, 2014 WL 3396522 (Minn. App. July
14, 2014). We concluded that the argument fails for four reasons: there is no legal
support for applying the unconstitutional-conditions doctrine to a Fourth Amendment
constitutional challenge; the implied-consent law “does not authorize any search,”
because no chemical test is given if a person does not consent; even if the law “authorizes
a search of a driver’s blood, breath, or urine, such a search would not violate the Fourth
Amendment” because it would be constitutionally reasonable; and the implied-consent
law is not sufficiently coercive to violate the unconstitutional-conditions doctrine.
Stevens, 2014 WL 3396522, at *5-11; see also Minn. Stat. § 169A.52 (prohibiting a
search of a driver’s blood, breath, or urine if the driver expressly refuses). Schroll’s
unconstitutional-conditions argument fails for the same reasons.
Schroll characterizes his second constitutional argument as a due-process
challenge flowing from his right to be free from unreasonable searches. We rejected this
argument in a criminal test-refusal case, holding “[test-refusal] prosecution did not
implicate any fundamental due process rights” and “[t]he Fourth Amendment does not
prohibit the state from criminalizing a suspected drunk driver’s refusal to submit to a
breath test.” State v. Bernard, 844 N.W.2d 41, 42, 46 (Minn. App. 2014), review granted
(Minn. May 20, 2014). We reasoned that because the officer had probable cause to
believe that Bernard was driving while impaired, the officer also had the option to obtain
a test of Bernard’s blood by search warrant. Id. at 45-46. “In other words, the officer had
a lawful option to require Bernard to submit to a chemical test, based on a search
7 warrant, and he instead gave Bernard the choice to voluntarily submit to warrantless
testing.” Id. at 46.
And, as noted above, we more recently held in Stevens that the implied-consent
law neither authorizes a search that would violate the Fourth Amendment (because no
search occurs without a driver’s express consent) nor results in a constitutionally
unreasonable search. Accordingly, we conclude that Schroll has not met his heavy
burden to show that the implied-consent law is unconstitutional.
In sum, we conclude that the implied-consent law does not violate the
unconstitutional-conditions doctrine and that Schroll has not met his heavy burden to
demonstrate that the implied-consent law is otherwise unconstitutional.
Affirmed.