MN Court of Appeals says no refusal to submit to alcohol testing unless officer properly asked the question
In a recent Minnesota Court of Appeals ruling, State v. Hammann, the following case before the Minnesota Court of Appeals stands for the proposition that it does not count as a refusal to submit to alcohol testing if the officer never asks the question in the right way
The appellant/defendant in the case was arrested for driving while intoxicated and taken to the local police department. While at the station, the appellant was read the Minnesota Implied Consent Advisory and the officer asked whether he would submit to a urine test. Appellant asked exactly what kind of tests were available to him and one of the officers responded, “We’re gonna offer you urine or blood… If you won’t do urine we’re gonna ask you for blood and that’s it.” The appellant kept questioning the officers about the Minnesota implied-consent process and tried unsuccessfully many times to call both his attorney and his brother.
After nearly an hour passed by, one of the arresting officers repeatedly asked the appellant whether he would agree to submit to a urine test. Appellant never directly responded to the officer’s question, but it did not stop the officer from saying that he was going to consider that a refusal to take the test. The appellant then responded to the statement by saying that he was absolutely willing to take whatever test was appropriate. The officer ignored the statement and decided that appellant had refused the test.
The appellant was convicted of third degree refusal to submit to testing but on appeal, the Minnesota Court of Appeals reversed the conviction. The Court reiterated the state’s law saying that any person who drives a car in the state consents to a chemical test of their blood, breath or urine to determine the presence of alcohol. In Minnesota, it’s a crime to refuse to submit to such a test when asked.
The Court continued, saying that action can be taken against a person who refuses to submit to such a test “only if an alternative test was offered.” For instance, a person can only be said to have refused to take a urine test if an alternative test was offered by the officer.
In this case, the officer in question did not pose a proper alternative test. They simply said if the appellant did not submit to a urine test he would have to have a blood test, “and that’s it.” Such a statement was not an appropriate offer for an alternate test. Because appellant was not offered an alternate test as required by state law, his refusal conviction could not stand.
To read the full opinion, click here.