State v. Lopez

538 N.W.2d 705, 1995 Minn. App. LEXIS 1276, 1995 WL 592843

• Court: Court of Appeals of Minnesota
• Decided: October 10, 1995
• Docket: C9-95-714, C0-95-715 and C2-95-716
• Status: Published

Opinions

OPINION

DAVIES, Judge.

In this consolidated appeal from three separate DWI convictions, appellants challenge the trial court’s denial of their motions to exclude evidence obtained after unrecorded implied consent advisories were given, based on its holding that the reading of an implied consent advisory is not a custodial interrogation triggering the electronic recording requirement set forth in State v. Scales, 518 N.W.2d 587 (Minn.1994). We affirm.

FACTS

Appellants Linda R. Lopez, Daniel J. She-kore, and Roger D. Albro were arrested on separate occasions for driving under the influence of alcohol (DWI). Following their arrests, each was taken to the Clay County Law Enforcement Center and given standard implied consent advisories. All three appellants agreed to take the test, and all were found to have blood-alcohol concentrations in excess of .10.

Prior to their DWI trials, appellants separately filed motions to exclude evidence obtained after the reading of the implied consent advisory, including the alcohol concentration test results. Appellants argued that the officers’ failure to electronically record the reading of and responses to the implied consent advisory violated the recently established requirement that custodial interrogations in places of detention be recorded. Scales, 518 N.W.2d at 592. The trial court denied the motions to exclude, holding that the reading of an implied consent advisory is not a custodial interrogation subject to the Scales decision.

Appellants were separately tried and convicted of DWI on stipulated facts. They appeal.

ISSUE

Is the reading of an implied consent advisory a “custodial interrogation” triggering the Scales recording requirement?

ANALYSIS

On appeal of the denial of a suppression motion, this court “may independently review the facts and determine, as a matter of law, whether the evidence need be suppressed.” State v. Othoudt, 482 N.W.2d 218, 221 (Minn.1992).

In Scales, our supreme court held that all custodial interrogation including any information about rights, any waiver of those rights, and all questioning shall be electronically recorded where feasible and must be recorded when questioning occurs at a place of detention.

518 N.W.2d at 592. If the trial court deems a violation of the recording requirement “substantial,” any statements obtained must be suppressed. Id.

It is not disputed that the Clay County Law Enforcement Center is a place of detention, and thus strict compliance with Scales is required for any “custodial interrogation” at the facility. Thus, the only issue on appeal is whether the reading of the implied consent advisory is a “custodial interrogation,” triggering Scales.

Both federal and Minnesota law plainly indicate that no custodial interrogation occurs when an implied consent advisory is given. The United States Supreme Court has held:

In the context of an arrest for driving while intoxicated, a police inquiry of whether the suspect will take a blood-alcohol test is not an interrogation within the meaning of Miranda.

South Dakota v. Neville, 459 U.S. 553, 564 n. 15, 103 S.Ct. 916, 923 n. 15, 74 L.Ed.2d 748 (1983); see also Pennsylvania v. Muniz, 496 U.S. 582, 605, 110 S.Ct. 2638, 2652, 110 L.Ed.2d 528 (1990) (implied consent advisory involves “limited and focused inquiries” that are “not likely to be perceived as calling for any incriminating response”). Several Minnesota decisions have cited Neville in holding that no interrogation takes place when the implied consent advisory is given. Nyflot v. Commissioner of Pub. Safety, 369 N.W.2d 512, 516 (Minn.1985); State v. Gross, 335 N.W.2d 509, 510 (Minn.1983); State v. Whitehead, 458 N.W.2d 145, 148 (Minn.App.1990), review denied (Minn. Sept. 14, 1990).

Appellants assert, in effect, that the above-cited Minnesota cases are no longer applicable because they pre-date Minn.Stat. 169.121, subd. la, which now makes it a crime to refuse to take the alcohol concentration test. They argue that when a driver is asked to take the test, the question calls for a potentially incriminating response (i.e., a refusal), and therefore the questioning is a custodial interrogation. Our supreme court has rejected that analysis, however, holding that the criminal penalties do not convert the reading of an implied consent advisory into “interrogation” for purposes of the privilege against self-incrimination. McDonnell v. Commissioner of Pub. Safety, 473 N.W.2d 848, 855-56 (Minn.1991). Because no interrogation is involved, the Scales recording requirement is not applicable. 518 N.W.2d at 592. Our holding follows those of two other panels from this court, State v. Gilmartin, 535 N.W.2d 650 (Minn.App.1995), review denied (Minn. Sept. 20, 1995), and Umphlett v. Commissioner of Pub. Safety, 533 N.W.2d 636 (Minn.App.1995), review denied (Minn. Aug. 30, 1995).¹

DECISION

The trial court correctly held that the reading of an implied consent advisory is not a “custodial interrogation” triggering the Scales electronic recording requirement. Therefore, it properly denied appellants’ motions to exclude all evidence obtained after the reading of the unrecorded advisories.

Affirmed.

1 . Both Gilmartin and Umphlett state that, because this court does not have supervisory power over the administration of justice, it cannot extend Scales to cover an implied consent advisory. Gilmartin, 535 N.W.2d at 653; Umphlett, 533 N.W.2d at 640. We decline to address the issue of what supervisory power this court may have, but see the concurrence, which is compelling on this point.