Antone William Guimont v. Commissioner of Public Safety ( 2015 )

This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (2014).
STATE OF MINNESOTA
IN COURT OF APPEALS
A14-1141
Antone William Guimont, petitioner,
Appellant,
vs.
Commissioner of Public Safety,
Respondent.
Filed April 6, 2015
Affirmed
Reyes, Judge
Mille Lacs County District Court
File No. 48-CV-13-867
Lee R. Wolfgram, The Wolfgram Law Firm, Ltd, Minneapolis, Minnesota (for appellant)
Lori Swanson, Attorney General, Jeffrey S. Bilcik, Assistant Attorney General, St. Paul,
Minnesota (for respondent)
Considered and decided by Bjorkman, Presiding Judge; Hudson, Judge; and
Reyes, Judge.
UNPUBLISHED OPINION
REYES, Judge
Appellant challenges the district court’s order sustaining the revocation of his
driver’s license. He argues that (1) Minnesota’s implied-consent law is unconstitutional
because it violates the unconstitutional-conditions doctrine and his due process rights;
(2) the officer did not possess probable cause to believe that he was driving, operating, or
in physical control of a motor vehicle; and (3) his limited right to counsel was not
vindicated. We affirm.
FACTS
At approximately 1:00 a.m. on May 5, 2013, Princeton Police Officer Alex Dehn
received a complaint that a vehicle traveling eastbound on Highway 95 was driving
erratically. The complainant described the vehicle as a white, crew-cab Chevrolet truck
and informed dispatch that the vehicle had turned north on Rum River Drive. A few
minutes later, Officer Dehn located a vehicle matching that description parked in a
residential driveway approximately two blocks from the last location provided by the
complainant. The vehicle was not running, but its headlights and taillights were lit.
Officer Dehn approached the vehicle and located appellant sitting in the driver’s
seat. He did not observe the keys in the ignition or in appellant’s possession. Appellant
told the officer that he had not been driving on Highway 95, but admitted that he had just
returned home from the VFW, where he had consumed “five, six, or seven beers,”
including one approximately 20 minutes before the officer approached him. Appellant
told the officer that based on the amount of alcohol that he had consumed, he was “not
going to blow legal.” The officer also testified that appellant exhibited several other
signs of alcohol intoxication, including slurred speech, watery eyes, and an odor of
alcohol.
Officer Dehn arrested appellant after he refused to perform field sobriety tests or
submit to a preliminary breath test and transported him to the Princeton Police
Department. There, the officer read appellant the Minnesota Implied Consent Advisory
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and asked appellant if he wished to speak with an attorney. Appellant answered in the
affirmative and attempted to locate a business card for his lawyer. After appellant was
unable to locate the business card, the officer asked if he wished to use the phone book to
contact an attorney. Appellant declined.
Officer Dehn then asked appellant if he would consent to a blood or urine test.
Appellant initially indicated that he would not, but subsequently told the officer that he
would take the blood test “if [the officer] wanted him to.” The officer told appellant that
it was appellant’s decision whether he would submit to testing and asked appellant again
if he would take either test. Appellant refused, telling the officer that he would not
submit to testing because the officer did not stop him on a public street. Officer Dehn did
not attempt to obtain a warrant authorizing the seizure of appellant’s blood or urine.
Appellant’s driving privileges were revoked, and he filed a petition to rescind the
revocation. At the implied-consent hearing, appellant testified that he consumed multiple
drinks over a several-hour period at the VFW. He stated that, after he drove home, he
went inside, retrieved a beer, and returned to his vehicle to smoke a cigarette. Appellant
estimated that he had been home for approximately fifteen minutes before he encountered
the officer. He also testified that he did not have his keys when he returned to the
vehicle. The district court found that appellant’s testimony was not credible and
sustained the revocation of his driver’s license. This appeal follows.
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DECISION
I.
Appellant argues that Minnesota’s implied-consent statute is unconstitutional
because it violates both the unconstitutional conditions doctrine and his substantive due-
process rights. The constitutionality of a statute is a question of law, which we review de
novo. State v. Ness, 834 N.W.2d 177, 181 (Minn. 2013). We presume that Minnesota
statutes are constitutional and will declare a statute unconstitutional “with extreme
caution and only when absolutely necessary.” Id. at 182 (quotation omitted). The party
challenging a statute on constitutional grounds must meet “the very heavy burden of
demonstrating beyond a reasonable doubt that the statute is unconstitutional.” State v.
Johnson, 813 N.W.2d 1, 11 (Minn. 2012) (quotation omitted).
Minnesota’s implied-consent statute states that any person “who drives, operates,
or is in physical control of a motor vehicle within this state or on any boundary water of
this state consents . . . to a chemical test of that person’s blood, breath, or urine for the
purpose of determining the presence of alcohol.” Minn. Stat. § 169A.51, subd. 1(a)
(2014). A law-enforcement officer may impose this duty on a person if the officer has
probable cause to believe that the person has committed the offense of driving while
intoxicated (DWI) and if the officer has arrested that person for DWI. Minn. Stat.
§ 169A.51, subd. 1(b) (2014). If a person refuses to submit to chemical testing, “a test
must not be given.” Minn. Stat. § 169A.52, subd. 1 (2014). But the commissioner of
public safety may revoke a person’s driver’s license for refusal to submit to testing.
Minn. Stat. § 169A.52, subd. 3 (2014).
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Appellant contends that Minnesota’s implied-consent statute violates the
unconstitutional-conditions doctrine because the statute conditions his driving privileges
on the waiver of his right to be free from unreasonable searches and seizures. “The
unconstitutional-conditions doctrine is a creature of federal law that may, in some
situations, be invoked to protect or vindicate a constitutional right.” Stevens v. Comm’r
of Pub. Safety, 850 N.W.2d 717, 723 (Minn. App. 2014) (citing Frost v. Railroad
Comm’n of Cal., 271 U.S. 583, 592–93, 46 S. Ct. 605, 607 (1926)). Essentially, “the
unconstitutional conditions doctrine reflects a limit on the state’s ability to coerce waiver
of a constitutional right where the state may not impose on that right directly.” State v.
Netland, 762 N.W.2d 202, 211 (Minn. 2009), abrogated in part by Missouri v. McNeely,
133 S. Ct. 1552 (2013), as recognized in State v. Brooks, 838 N.W.2d 563, 567 (Minn.
2013, cert. denied, 134 S. Ct. 1799 (2014).
We have previously concluded that the implied-consent statute does not violate the
unconstitutional conditions doctrine by authorizing the commissioner of public safety to
revoke the driver’s license of a person who has been arrested for DWI and has refused to
submit to chemical testing. See Stevens, 850 N.W.2d at 720. We based our conclusion
on several factors, including the fact that: (1) the unconstitutional-conditions doctrine has
not been applied to the Fourth Amendment; (2) the implied-consent statute does not
authorize a search inconsistent with the Fourth Amendment because the statute requires
the driver to expressly consent to testing before a test is given; (3) any search authorized
by the implied-consent statute does not violate the Fourth Amendment because the statute
is a reasonable method of promoting the state’s interest in enforcing its DWI laws; and
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(4) the implied-consent statute does not coerce a driver into surrendering his or her
Fourth Amendment rights. Id. at 723-31. Appellant does not identify any reason why
that rationale does not apply here. He therefore fails to meet his burden to demonstrate
that the implied-consent statute violates the unconstitutional-conditions doctrine.
Appellant also argues that the implied consent statute is unconstitutional because it
violates substantive due-process guarantees. “[S]ubstantive due process protects
individuals from certain arbitrary, wrongful government actions regardless of the fairness
of the procedures used to implement them.” In re Linehan, 594 N.W.2d 867, 872 (Minn.
1999) (quotations omitted). “[T]he Due Process Clause specially protects those
fundamental rights and liberties which are, objectively, deeply rooted in this Nation's
history and tradition . . . and implicit in the concept of ordered liberty, such that neither
liberty nor justice would exist if they were sacrificed.” Washington v. Glucksberg, 521
U.S. 702, 720-21, 117 S. Ct. 2258, 2268 (1997) (quotations and citations omitted).
Appellate courts will strictly scrutinize a challenged law that implicates a fundamental
right. Essling v. Markman, 335 N.W.2d 237, 239 (Minn. 1983). But when the right
implicated is not fundamental, this court looks only to whether the law is rationally
related to the achievement of a legitimate governmental purpose. Id.Appellant asserts that Minnesota’s implied-consent statute is subject to strict
scrutiny because it implicates his fundamental right to refuse a “constitutionally
unreasonable search.” But we have previously concluded that the implied-consent statute
does not authorize a search and that if it did, the search authorized would be
constitutional because the statute satisfies the general reasonableness requirement of the
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Fourth Amendment. See Stevens, 850 N.W.2d at 725-31. Moreover, appellant does not
identify, and we are unable to locate, any case that holds a person suspected of drunk
driving possesses the fundamental right to refuse alcohol testing. The United States
Supreme Court has previously stated that the right to refuse alcohol testing is not
embedded in the Constitution, but is “simply a matter of grace bestowed by the
[legislature].” South Dakota v. Neville, 459 U.S. 553, 565, 103 S. Ct. 916, 923 (1983).
Because appellant does not establish that the implied-consent statute implicates a
fundamental right, we review only whether the statute is rationally related to the
achievement of a legitimate government purpose. There is no dispute that the state
possesses a strong interest in protecting the safety of its roads or that the suspension of
driver’s licenses for those who refuse testing after being arrested for DWI is a rational
means of protecting that interest. See Stevens, 850 N.W.2d at 726-31. We therefore
conclude that the implied-consent statute does not violate appellant’s substantive due-
process rights.1
II.
Appellant also argues that the district court erred by concluding that the officer
possessed probable cause to believe that appellant drove, operated, or was in physical
1
The Minnesota Supreme Court has recently held that a person’s substantive due-process
rights are not violated when the officer asks the person to submit to a breath test because
that test would have been constitutional under the search-incident-to-arrest exception to
the warrant requirement. State v. Bernard, ___, N.W.2d. ___, ___ 2015 WL 543160, *8–
*9 (Minn. Feb. 11, 2015). But the court expressly declined to consider whether a blood
or urine test would be constitutional under the same exception, noting that blood tests are
much more invasive than breath tests. Id. at *4 n.6; see also Skinner v. Ry Labor Execs.
Ass’n, 489 U.S. 602, 626, 109 S. Ct. 1402, 1418 (1989) (stating that urine tests raise
privacy concerns not implicated by blood or breath tests).
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control of the vehicle. The commissioner of public safety may revoke a person’s driver’s
license when an officer has certified that probable cause existed to believe that the person
had been driving, operating, or in physical control of a vehicle while under the influence
of alcohol, and that the person refused to submit to testing. Minn. Stat. § 169A.52, subd.
3. Because the revocation is “based on the refusal to act on the lawful request of a peace
officer,” the subsequent judicial review of the revocation is limited to whether the officer
possessed probable cause to believe that the person drove or was in physical control of
the motor vehicle. Flamang v. Comm’r of Pub. Safety, 516 N.W.2d 577, 580 (Minn.
App. 1994), review denied (Minn. July 27, 1994).
Probable cause exists when, “based on the totality of the circumstances, there is a
reasonable ground of suspicion supported by circumstances sufficiently strong in
themselves to warrant a cautious man in believing” that the person drove or exercised
physical control of the vehicle. Shane v. Comm’r of Pub. Safety, 587 N.W.2d 639, 641
(Minn. 1998) (quotation omitted). “A determination of probable cause is a mixed
question of fact and of law.” Groe v. Comm’r of Pub. Safety, 615 N.W.2d 837, 840
(Minn. App. 2000), review denied (Minn. Sept. 13, 2000). The district court’s factual
findings will not be disturbed unless clearly erroneous. Lynch v. Comm’r of Pub. Safety,
498 N.W.2d 37, 39 (Minn. App. 1993). But when the facts of a case are not in dispute,
probable cause is a question of law that we review de novo. Shane, 587 N.W.2d at 641.
Whether probable cause exists is an objective inquiry that must be evaluated from the
point of view of a “prudent and cautious police officer on the scene at the time of the
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arrest.” Johnson v. Comm’r of Pub. Safety, 366 N.W.2d 347, 350 (Minn. App. 1985)
(quotation omitted).
Here, the complainant reported that a white Chevrolet crew-cab truck was driving
erratically. The officer located a vehicle matching that description a few minutes later a
short distance from where the complainant last reported observing it. The vehicle’s
taillights and headlights were lit and appellant was seated in the driver’s seat. Appellant
admitted to the officer that he had just driven home from the VFW and that he had
consumed a considerable amount of alcohol that night, and the officer observed several
indicia of intoxication. We conclude that, under these circumstances, the officer
possessed probable cause to believe that appellant had driven the vehicle.
We also consider whether the evidence is sufficient to establish probable cause
that appellant retained physical control over the vehicle. “The term ‘physical control’ is
more comprehensive than either ‘drive’ or ‘operate.’” State v. Starfield, 481 N.W.2d
834, 836 (Minn. 1992). The term encompasses situations where an intoxicated person is
found in a parked vehicle that, “without too much difficulty, might again be started.”
Flamang, 516 N.W.2d at 581. A person’s mere presence in or about the vehicle is not
sufficient to establish physical control; rather the evidence must demonstrate that the
person “has or is about to take some action that makes the motor vehicle a source of
danger to themselves, to others, or to property.” Snyder v. Comm’r of Pub. Safety, 744
N.W.2d 19, 23 (Minn. App. 2008) (quotation omitted). In this case, the fact that:
(1) appellant remained in the driver’s seat; (2) the vehicle’s lights were on; and (3) he
admitted that he had just finished driving the vehicle after drinking demonstrates
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probable cause to believe that appellant had or could have taken some action to make the
vehicle a source of danger to others. See Dufrane v. Comm’r of Pub. Safety, 353 N.W.2d
705, 708 (Minn. App. 1984) (stating that DuFrane’s “upright presence in the front seat
and behind the wheel of a car, plus the testimony of the police officer that appellant had
told her he had been driving the car earlier, constitutes reasonable and probable grounds
to believe [he] was in physical control of a motor vehicle”). We also conclude, therefore,
that the officer possessed probable cause to believe that appellant retained physical
control over the vehicle.
Appellant argues that the evidence establishes that he was in the vehicle for
purposes other than driving or controlling it. He notes that the officer was unable to
locate the keys for the vehicle, that the vehicle was parked in his home, and that he
testified at the implied-consent hearing that he did not intend to drive the vehicle, but that
he was there to retrieve his cigarettes. He maintains that because the evidence
demonstrates no risk that he would “restart the vehicle in an intoxicated state,” the officer
did not possess probable cause to believe that he maintained physical control over the
vehicle. State, City of Falcon Heights v. Pazderski, 352 N.W.2d 85, 88 (Minn. App.
1984). We are not persuaded, for several reasons.
The location of the keys is not dispositive to the issue of whether there is probable
cause to conclude that a person drove or exercised physical control of the vehicle. Ledin
v. Comm’r of Pub. Safety, 393 N.W.2d 433, 435 (Minn. App. 1986). Likewise, a
person’s intent to operate the vehicle is not essential to establishing whether that person
exercised physical control over the vehicle. Starfield, 481 N.W.2d at 839. In addition,
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appellant’s testimony that he was at the car to retrieve his cigarettes conflicted with the
statement that he made to the officer on the night that he was arrested. The district court
found that appellant’s testimony was not credible, and we defer to the district court’s
credibility determinations. Conrady v. Comm’r of Pub. Safety, 396 N.W.2d 914, 916
(Minn. App. 1986). And, in any event, our review of probable cause is based on the facts
and circumstances known to the officer at the time of arrest. See Holm v. Comm’r of
Pub. Safety, 416 N.W.2d 473, 475 (Minn. App. 1987). Here, because appellant did not
inform the officer of the circumstances described in his testimony, the officer could not
have considered those facts in assessing probable cause. The district court properly
considered the totality of the circumstances known to the officer at the time of arrest.
Because those circumstances support the district court’s conclusion that probable cause
existed, we affirm the district court’s decision to sustain the revocation of appellant’s
driver’s license.
III.
Finally, for the first time on appeal, appellant argues that the district court’s order
sustaining the revocation of his license should be reversed because his right to counsel
was not vindicated. To raise a license-revocation issue for judicial review, a petitioner
must “state with specificity the grounds upon which the petitioner seeks rescission of the
order of revocation.” Minn. Stat. § 169A.53, subd. 2(b)(3) (2014). A district court does
not err by failing to address an issue not raised in the petition for judicial review.
Rancour v. Comm’r of Pub. Safety, 355 N.W.2d 462, 464 (Minn. App. 1984) At the
implied-consent hearing, appellant informed the district court that he waived all issues
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but his challenge to the constitutionality of the implied-consent statute, reasonable
articulable suspicion for the stop, and probable cause for the test. Because appellant did
not argue the vindication of counsel issue to the district court, he has waived review of it
on appeal. Thiele v. Stich, 425 N.W.2d 580, 582 (Minn. 1988).
Affirmed.
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