Jason Richard Montonye 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This opinion will be unpublished and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
A15-0210
Jason Richard Montonye, petitioner,
Appellant,
vs.
Commissioner of Public Safety,
Respondent.
Filed November 16, 2015
Affirmed
Larkin, Judge
Grant County District Court
File No. 26-CV-14-155
Samuel J. Edmunds, Sieben Edmunds PLLC, Mendota Heights, Minnesota (for appellant)
Lori Swanson, Attorney General, Frederic J. Argir, Jacob Fischmann, Assistant Attorneys
General, St. Paul, Minnesota (for respondent)
Considered and decided by Larkin, Presiding Judge; Bjorkman, Judge; and Minge,
Judge.

Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to
Minn. Const. art. VI, § 10.
UNPUBLISHED OPINION
LARKIN, Judge
Appellant challenges the revocation of his license to drive under Minnesota’s
implied-consent law, which stemmed from his arrest for driving while impaired. He
argues that the revocation should be rescinded because the arresting officer did not have
probable cause to believe he had driven while impaired and because the officer did not
comply with the implied-consent law. We affirm.
FACTS
Respondent Commissioner of Public Safety revoked appellant Jason Richard
Montonye’s license to drive after he was arrested for driving while impaired and refused
to submit to chemical testing under Minnesota’s implied-consent law. Even though
Montonye refused to provide a sample for chemical testing, the arresting officer obtained
two blood samples from him pursuant to a search warrant. Montonye petitioned the
district court to rescind the revocation, arguing that the officer improperly invoked the
implied-consent law because he did not have probable cause to believe Montonye had
driven while impaired and that the officer violated the implied-consent law by obtaining
Montonye’s blood sample after he refused testing. The district court held an evidentiary
hearing, made findings of fact, and sustained the revocation. Montonye appeals.
DECISION
I.
Montonye contends that the district court erroneously concluded that the arresting
officer had probable cause to believe that he had driven while impaired and to therefore
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invoke Minnesota’s implied-consent law. Minnesota’s implied-consent statute provides
that a chemical test “may be required of a person when an officer has probable cause to
believe the person was driving, operating, or in physical control of a motor vehicle” while
impaired and the person has been lawfully placed under arrest. Minn. Stat. § 169A.51,
subd. 1(b), 1(b)(1) (2012).
Probable cause exists when “there are facts and circumstances known to [an]
officer which would warrant a prudent man in believing that [an] individual was driving
or was operating a motor vehicle on the highway while under the influence of an
alcoholic beverage.” State v. Harris, 295 Minn. 38, 42, 202 N.W.2d 878, 881 (1972).
The probable-cause standard is “an objective one that considers the totality of the
circumstances.” State v. Olson, 634 N.W.2d 224, 228 (Minn. App. 2001), review denied
(Minn. Dec. 11, 2001). Here, neither party challenges the district court’s factual findings,
so we review the district court’s probable-cause determination de novo. See Shane v.
Comm’r of Pub. Safety, 587 N.W.2d 639, 641 (Minn. 1998) (“When the facts of a case
are undisputed, probable cause is a question of law to be reviewed de novo.”).
An admission of alcohol consumption and the presence of objective indicators of
intoxication are generally sufficient to establish probable cause. See Martin v. Comm’r of
Pub. Safety, 353 N.W.2d 202, 204 (Minn. App. 1984) (noting that “there are numerous
signs indicating a person is under the influence of intoxicating liquor, and that an opinion
on that condition can be reached without presence of all of the signs”); cf. Johnson v.
Comm’r of Pub. Safety, 366 N.W.2d 347, 350 (Minn. App. 1985) (finding that probable
cause existed to invoke the implied-consent procedure in part because of a driver’s
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admission of driving). A “temporal connection” between the driving and intoxication
must be shown to establish probable cause to believe a person was driving a motor
vehicle under the influence of alcohol. Dietrich v. Comm’r of Pub. Safety, 363 N.W.2d
801, 803 (Minn. App. 1985). However, an officer need not “know the exact time” a
person was driving or “personally observe the driving or operating of the vehicle.”
Delong v. Comm’r of Pub. Safety, 386 N.W.2d 296, 298 (Minn. App. 1986), review
denied (Minn. June 13, 1986).
The facts relevant to the probable-cause determination are as follows. At 2:26
a.m., a third party reported that a domestic assault had occurred at the Montonye
residence approximately one hour earlier. Officer Dale Haberer and Officer Ken
Froemming separately arrived at Montonye’s residence. Officer Haberer observed two
vehicles, tire marks, and torn up grass in the yard. Officer Froemming also observed the
tire marks and torn up grass. Montonye’s son stated that Montonye was drunk and that
he and Montonye got into a fight. Montonye’s son stated that Montonye may have
caused the tire marks in the yard. When Officer Haberer mentioned that Montonye’s son
indicated that Montonye had driven, Montonye “nodded his head in apparent
acknowledgement.”
In addition, Montonye smelled of alcohol, slurred his speech, and was unsteady on
his feet. Montonye stated that he had consumed three drinks and two beers at a
graduation party and that he had his last drink at approximately 2:00 a.m. Montonye
stated that he was drunk during the fight with his son, that he left afterward for his
parents’ house in his vehicle but turned around because of low fuel, and that he made the
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tire marks in the yard because he was frustrated with his son. Officer Froemming
administered field sobriety tests to Montonye and observed indicators of intoxication
during a horizontal gaze nystagmus (HGN) test. Montonye told Officer Froemming to
skip the HGN test because he was intoxicated. Montonye took a preliminary breath test
(PBT), which revealed an alcohol concentration of .199.
Montonye concedes that there was probable cause to believe that he was
intoxicated when the officers arrived at his residence, but he argues that there was not
probable cause to believe that he had driven while impaired. Specifically, he argues that
the officers “could not temporally connect the impairment and the driving.” We disagree.
Montonye admitted that he was drunk during the fight with his son and that he drove
from his house after the fight. Based on the third-party report, the officers knew that the
fight occurred approximately one hour prior to their arrival. Montonye displayed several
signs of intoxication during his encounter with the police. Under the circumstances, there
was probable cause to believe that Montonye had driven while impaired.
II.
Montonye contends that “the district court erred by sustaining [his] license
revocation because the officers failed to comply with the implied consent law.” His
contention raises issues of law that we review de novo. See Nordvick v. Comm’r of Pub.
Safety, 610 N.W.2d 659, 662 (Minn. App. 2000) (“Legal questions are reviewed de novo
on appeal.”).
Under Minnesota’s implied-consent statute, any person who operates a motor
vehicle in Minnesota “consents, subject to the provisions of sections 169A.50 to 169A.53
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(implied consent law), . . . 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)
(2012). “If a person refuses to permit a test, then a test must not be given, but the peace
officer shall report the refusal to the commissioner . . . .” Minn. Stat. § 169A.52, subd. 1.
(2012). If a driver refuses to submit to alcohol-concentration testing upon a law
enforcement officer’s valid request, the commissioner of public safety must revoke that
person’s license to drive. Minn. Stat. § 169A.52, subd. 3(a) (2012).
The relevant facts are as follows. Officer Froemming arrested Montonye and
transported him to the sheriff’s office, where he read Montonye Minnesota’s implied-
consent advisory and asked him if he would submit to a breath test. Montonye refused.
Officer Froemming drafted a search-warrant application to obtain a blood sample from
Montonye. Officer Froemming contacted a judge to sign the warrant but could not obtain
a copy of the signed warrant due to technical difficulties. The judge eventually gave
Officer Froemming “verbal permission to execute the warrant.” Officer Froemming
transported Montonye to a hospital where a nurse took two samples of his blood with a
law-enforcement kit after an initial, unsuccessful attempt to take a sample using another
kit.
Montonye argues that his license revocation should be rescinded because law
enforcement failed to comply with the portion of the implied-consent statute that states,
“If a person refuses to permit a test, then a test must not be given . . . .” Minn. Stat.
§ 169A.52, subd. 1; see State v. Scott, 473 N.W.2d 375, 377 (Minn. App. 1991) (“The
implied consent law states in clear and unambiguous language that an officer shall not
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give a test if the driver refuses to permit one.”). He asserts that the government may only
revoke a person’s license to drive under the implied-consent law if the police comply
with the implied-consent law.
Montonye relies primarily on Scott. In Scott, a driver’s blood sample was taken
after the driver refused testing, and the issue on appeal was whether the results of the
blood test were admissible. 473 N.W.2d at 376. This court concluded that the district
court properly suppressed the test results. Id. at 378; see also State v. Aschnewitz, 483
N.W.2d 107, 108 (Minn. App. 1992) (“In Scott, when the accused invoked the right to
refuse testing offered through the implied consent advisory, the result from the test taken
despite that refusal was not admissible.”). Here, the district court followed Scott and
suppressed the results of Montonye’s blood test. Scott does not also require rescission of
Montonye’s license revocation, which was based on his test refusal.
Montonye also relies on cases holding that license revocations were improper
because law enforcement did not comply with other requirements related to the implied-
consent law. In those cases, procedural irregularities affected the drivers’ decisions
whether to submit to testing. For example, in Friedman v. Comm’r of Pub. Safety, the
supreme court reversed a license revocation because the driver’s limited right to counsel
“before deciding whether to submit to chemical testing” was violated. 473 N.W.2d 828,
835, 837 (Minn. 1991). The supreme court similarly has noted that it is “improper and
unfair” to revoke a driver’s license based on a person’s refusal when law enforcement
does not provide an implied-consent advisory because that advisory lets “a driver know
the serious consequences of his refusal to take a test.” Tyler v. Comm’r of Pub. Safety,
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368 N.W.2d 275, 280 (Minn. 1985); see also Scott, 473 N.W.2d at 377 (noting that “the
purpose of the implied consent advisory is to inform the driver of the serious
consequences of his or her refusal”).
Friedman and Tyler are distinguishable from this case. An officer’s failure to
provide an implied-consent advisory or to vindicate the right to pretest counsel limits the
information that a driver has when deciding whether to submit to chemical testing. The
lack of information, in turn, potentially affects the driver’s decision whether to submit to
chemical testing. However, obtaining a chemical-test sample from a driver pursuant to a
search warrant after the driver has refused testing cannot and does not affect the driver’s
decision whether to submit to testing because that decision has already been made.
Because Officer Froemming’s failure to comply with the implied-consent law in this case
did not impact Montonye’s decision to refuse testing, we are not persuaded that precedent
requires rescission of the refusal-based revocation.
Montonye also argues that “as a deterrent to wrongful police conduct, the
exclusionary rule should be applied to prevent a license revocation when law
enforcement fails to comply with the implied consent law.” The exclusionary rule deters
improper police misconduct by excluding evidence obtained as the result of or through
constitutional violations. See Davis v. United States, 131 S. Ct. 2419, 2423 (2011)
(describing the exclusionary rule as “a deterrent sanction that bars the prosecution from
introducing evidence obtained by way of a Fourth Amendment violation”); see also
Mapp v. Ohio, 367 U.S. 643, 656, 81 S. Ct. 1684, 1692 (1961) (“[T]he purpose of the
exclusionary rule is to deter—to compel respect for the constitutional guaranty in the
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only effectively available way—by removing the incentive to disregard it.” (quotation
omitted)). The exclusionary rule applies to the “fruit” of the unconstitutional police
conduct. Wong Sun v. United States, 371 U.S. 471, 484, 83 S. Ct. 407, 416 (1963).
The improper police conduct in this case was obtaining a blood sample for
chemical testing, pursuant to a warrant, after Montonye refused to provide a sample
under the implied-consent law. Montonye agrees that the police misconduct is not a
constitutional violation. Moreover, Montonye’s refusal is not the fruit of the police
misconduct. Lastly, we are not aware of any precedent supporting Montonye’s argument
that the exclusionary rule applies to evidence obtained prior to police misconduct. For
those reasons, we hold that the exclusionary rule does not apply to evidence of
Montonye’s test refusal and it does not require rescission of his license revocation.
In conclusion, the district court did not err by affirming the revocation of
Montonye’s license to drive.
Affirmed.
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