Palbicki v. Commissioner of Public Safety

347 N.W.2d 512, 1984 Minn. App. LEXIS 3099
CourtCourt of Appeals of Minnesota
DecidedApril 24, 1984
DocketC3-83-1867
StatusPublished
Cited by22 cases

This text of 347 N.W.2d 512 (Palbicki v. Commissioner of Public Safety) is published on Counsel Stack Legal Research, covering Court of Appeals of Minnesota primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Palbicki v. Commissioner of Public Safety, 347 N.W.2d 512, 1984 Minn. App. LEXIS 3099 (Mich. Ct. App. 1984).

Opinion

OPINION

LANSING, Judge.

This is an appeal from an order of the Hennepin County Municipal Court sustaining the revocation of the driving privileges of William Palbicki pursuant to Minn.Stat. § 169.123 (1982), the implied consent statute. On appeal, Palbicki contends that he had reasonable grounds to refuse a blood test, that a breath test should have been offered again when he refused to take the blood test, and that the State failed to show that the nurse was qualified to withdraw blood. We affirm.

ISSUES

1. Was appellant’s refusal to submit to a blood test because the nurse did not provide medical identification and was not dressed in a nurse’s uniform based on reasonable grounds?

2. Was the peace officer required to offer a breath test again when appellant refused to allow the nurse to withdraw blood?

FACTS

Shortly before 1:00 a.m. on September 9, 1983, Richfield police officer Maurice Mera-bella arrested appellant William Palbicki for driving while under the influence of alcohol. Merabella transported Palbicki to the Richfield Police Station, read Palbicki the implied consent advisory form and requested that he submit to a breath test. Palbicki indicated that he wanted to consult an attorney.

Palbicki talked with an attorney for about 18 minutes by telephone. A few minutes later the attorney called back, informed Merabella that he had advised Pal-bicki not to submit to any test, and asked to speak again with Palbicki. He was allowed, to do so.

After the second consultation, Merabella offered Palbicki the breath test. He refused to submit to the breath test, but said he would take a blood test. Merabella explained that he was no longer obligated to offer a blood test, but that he could telephone a nurse who was “on call” with the Richfield Police Department to come to the station and administer the blood test. Pal-bicki stated that he wanted to take a blood test and the nurse was called.

About one hour later, Marsha Hudson, who is a nurse, arrived at the police station. She was wearing regular clothing rather than a nurse’s uniform: Palbicki described her apparel as a loose top and blue jeans.

Upon her arrival, Hudson got out the blood kit, prepared to administer the test, and asked Palbicki to roll up his sleeve. At that point, Palbicki asked to see her credentials to make sure she was a nurse. She stated that she did not have identification with her. Merabella vouched to Palbicki that Hudson was a nurse and advised Pal-bicki that he would have to take their word for it and submit to the blood test or it would be considered a refusal.

Palbicki refused to allow the nurse to administer the blood test and requested that he be taken to Fairview Southdale Hospital. Merabella denied this request. Merabella did not reread the implied consent advisory form, and he did not offer the breath test again. Palbicki did not request a breath test.

At trial Palbicki testified that his wife was a nurse. He stated that his refusal was based on concern for his health because he had heard of incidents where needles had broken off while in the arm allowing air to enter the vein.

*514 ANALYSIS

I

The Commissioner of Public Safety may not revoke the driver’s license of a person who refuses a chemical test if the person has reasonable grounds for the refusal. The implied consent statute provides that “[i]t shall be an affirmative defense for the petitioner to prove that,' at the time of the refusal, his refusal to permit the test was based upon reasonable grounds.” Minn. Stat. § 169.123, subd. 6 (1982). Palbicki contends that he had a reasonable concern about Hudson’s qualifications. He argues that her clothing, together with her failure to present medical identification, provided a reasonable basis for him to refuse the blood test.

The procedures for chemical testing are set forth in the Implied Consent Statute:

Only a physician, medical technician, physician’s trained mobile intensive care paramedic, registered nurse, medical technologist or laboratory assistant acting at the request of a peace officer may withdraw blood for the purpose of determining the presence of alcohol or controlled substance. This limitation does not apply to the taking- of a breath or urine specimen. The person tested has the right to have a person of his own choosing administer a chemical test or tests in addition to any administered at the direction of a peace officer; provided, that the additional test specimen on behalf of the person is obtained at the place where the person is in custody, after the test administered at the direction of a peace officer, and at no expense to the state. * * * The person administering a test at the request and direction of a peace officer shall be fully trained in the administration of the tests pursuant to standards promulgated by rule by the commissioner of public safety.

Minn.Stat. § 169.123, subd. 3 (1982) (emphasis supplied). The statute places the responsibility for requesting and directing the test on the peace officer. Officer Mer-abella's qualifications as a certified peace officer are not in question. There is also no dispute that Marsha Hudson was acting at the request of Officer Merabella.

Palbicki maintains that unless he was satisfied that Marsha Hudson was a qualified nurse, he was entitled to refuse the blood test. There is no statutory requirement that the person withdrawing the blood at the officer’s direction must prove to the driver that he or she is qualified before being allowed to take the sample. The statute permits a driver to have additional tests administered by anyone the driver chooses. However, the driver cannot direct where, when or by whom the initial test requested by the officer will be administered. To require proof of medical identification and qualifications prior to submitting to a test is to impose a statutory requirement that is not there.

The inquiry into whether the refusal was reasonable does not end here. The Supreme Court has found a refusal to be reasonable even when a statute was not violated. State, Dept. of Highways v. Beckey, 291 Minn. 483, 192 N.W.2d 441 (1971) (officer’s request was confusing and misleading). Whether a driver has reasonable grounds to refuse to be tested is a question of fact for the trial court. The trial judge determined that Palbicki did not have reasonable grounds for refusing to submit to a blood test. In reviewing the record it is clear that Officer Merabella vouched for the nurse’s qualifications. Furthermore, the behavior of Hudson, combined with the circumstances under which Palbicki encountered her, gave reasonable inferences of her qualifications to administer the test. Palbicki contends that Hudson was not dressed in clothing that would identify her as a nurse. However, it is unreasonable to expect an “on call” nurse to arrive at a police station at 2:00 a.m. dressed in a nurse’s uniform. It is far more likely at that hour that a nurse would be wearing the casual clothes that Palbicki described. Palbicki’s contention that the failure to provide medical identification made his refusal reasonable is no more persuasive.

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Bluebook (online)
347 N.W.2d 512, 1984 Minn. App. LEXIS 3099, Counsel Stack Legal Research, https://law.counselstack.com/opinion/palbicki-v-commissioner-of-public-safety-minnctapp-1984.