Bridget Colleen Johnson v. Commissioner of Public Safety ( 2016 )

This opinion will be unpublished and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
A15-1054
Bridget Colleen Johnson, petitioner,
Appellant,
vs.
Commissioner of Public Safety,
Respondent
Filed March 7, 2016
Affirmed
Worke, Judge
Hennepin County District Court
File Nos. 27-CV-14-16166, 27-CR-14-27762
Douglas V. Hazelton, Bloomington, Minnesota (for appellant)
Lori Swanson, Attorney General, William J. Young, Assistant Attorney General, St. Paul,
Minnesota (for respondent)
Considered and decided by Worke, Presiding Judge; Schellhas, Judge; and Reyes,
Judge.
UNPUBLISHED OPINION
WORKE, Judge
Appellant challenges the district court’s order sustaining the revocation of her
driver’s license, arguing that the implied-consent advisory violates due process because it
fails to inform a driver of all test-decision consequences, and that her pre-test right to
counsel was not vindicated because the aiding-and-abetting statute prevents an attorney
from advising a driver of all testing options. We affirm.
FACTS
On September 21, 2014, Officer Todd Peterson responded to a motor-vehicle
accident. The driver, appellant Bridget Colleen Johnson, appeared dazed, her eyes were
bloodshot, and her speech was “slurred, slow and sloppy.” Johnson stated that she had
come from a restaurant/bar where she drank three glasses of wine. Johnson emitted a
strong odor of an alcoholic beverage; failed field sobriety tests; and submitted to a
preliminary breath test (PBT), which indicated a result of 0.149 alcohol concentration
(AC). Officer Peterson arrested Johnson for driving while under the influence (DWI).
The officer transported Johnson to the jail, where he read her the implied-consent
advisory until she indicated her understanding. Johnson stated that she wanted to call an
attorney. Johnson was provided a telephone, her cell phone, and a phone directory.
Johnson eventually contacted someone, presumably an attorney. Johnson had the use of
the phone for approximately 45 minutes. Johnson agreed to take a breath test, and the
result showed 0.18 AC. Johnson was charged with DWI and her driver’s license was
revoked.
Johnson challenged the revocation of her driver’s license, arguing that she was not
informed of all testing consequences and that her attorney was prevented from fully
advising her because of the aiding-and-abetting statute. Johnson waived her appearance
at the implied-consent hearing and the parties stipulated to the facts contained in the
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police packet, including the implied-consent advisory, the test results, and the incident
report.
The district court sustained the revocation of Johnson’s driver’s license,
concluding that Officer Peterson provided Johnson with the required information before
requesting that she submit to a test, and that Johnson had adequate time to consult with
counsel. The district court determined that an attorney may not advise a client to commit
a crime (test refusal), but may explain the consequences of different courses of action.
This appeal follows.
DECISION
Due process
Johnson first argues that her due-process rights were violated because the implied-
consent advisory does not inform of all consequences of chemical testing. Whether an
implied-consent advisory violates a driver’s due-process rights is a question of law,
which this court reviews de novo. Fedziuk v. Comm’r of Pub. Safety, 696 N.W.2d 340,
344 (Minn. 2005). We will reverse a district court’s conclusions of law only when the
district court “has erroneously construed and applied the law to the facts of the case.”
Fehler v. Comm’r of Pub. Safety, 591 N.W.2d 752, 754 (Minn. App. 1999) (quotation
omitted), review denied (Minn. July 28, 1999).
When an officer arrests a driver for DWI and requests that she submit to a
chemical test, the officer must inform the driver:
(1) that Minnesota law requires the person to take a test:
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(i) to determine if the person is under the influence of
alcohol, controlled substances, or hazardous
substances;
(ii) to determine the presence of a controlled substance
listed in Schedule I or II or metabolite, other than
marijuana or tetrahydrocannabinols; and
(iii) if the motor vehicle was a commercial motor
vehicle, to determine the presence of alcohol;
(2) that refusal to take a test is a crime;
(3) if the peace officer has probable cause to believe the
person has violated the criminal vehicular homicide and
injury laws, that a test will be taken with or without the
person’s consent; and
(4) that the person has the right to consult with an attorney,
but that this right is limited to the extent that it cannot
unreasonably delay administration of the test.
Minn. Stat. § 169A.51, subd. 2(a) (2014). It is well-settled law that a police officer is not
required to advise a driver of all consequences of taking a chemical test, and that the only
mandatory advisory is that required under the implied-consent statute. McDonnell v.
Comm’r of Pub. Safety, 473 N.W.2d 848, 853 (Minn. 1991) (stating that “a state does not
violate the fundamental fairness inherent to due process by choosing not to advise
individuals of all the possible consequences they could face in refusing a breath test”).
Here, Johnson concedes that the implied-consent advisory read to her is the one
mandated by statute. Johnson submitted to a breath test that showed 0.18 AC. She
claims that her due-process rights were violated because the advisory contains no
warning that “testing 0.16 or more will result in worse administrative penalties than
refusing the test.”
A similar issue was raised in Magnuson v. Comm’r of Pub. Safety. 703 N.W.2d
557 (Minn. App. 2005). In Magnuson, the commissioner challenged the district court’s
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conclusion that the implied-consent advisory violated Magnuson’s due-process rights
because it did not warn that driving with an AC of 0.20 or more is an aggravating factor
that could increase the penalty. Id. at 561. This court held that the district court erred in
its conclusion because “due process does not require that the implied-consent advisory
warn a driver of every possible consequence of taking or refusing to take a chemical test
and . . . the advisory [read] was accurate and did not permit the police to threaten . . .
charges that the state may not impose.” Id. at 562.
Here, the officer read Johnson the advisory that contained the information required
by section 169A.51, subdivision 2. He did not inform Johnson that “testing 0.16 or more
will result in worse administrative penalties than refusing the test” because he was not
required to do so. See Catlin v. Comm’r of Pub. Safety, 490 N.W.2d 445, 447 (Minn.
App. 1992) (“The failure of the advisory to warn of every possible consequence [related
to a driver’s specific situation] does not violate fundamental fairness inherent in due
process.”). The district court did not err in concluding that the implied-consent advisory
did not violate Johnson’s due-process rights.
Right to counsel
Johnson next argues that her pre-test right to counsel was not vindicated because
her attorney was prohibited from fully advising her. When the facts are not in dispute, as
in this case, this court makes a legal determination whether a driver “was accorded a
reasonable opportunity to consult with counsel based on the given facts.” Kuhn v.
Comm’r of Pub. Safety, 488 N.W.2d 838, 840 (Minn. App. 1992), review denied (Minn.
Oct. 20, 1992).
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A driver has a limited right to counsel before deciding whether to submit to
chemical testing. Friedman v. Comm’r of Pub. Safety, 473 N.W.2d 828, 835 (Minn.
1991). This right is vindicated when the driver is provided with a telephone and given a
reasonable time to contact and consult with an attorney. Id.
Here, Johnson was provided a telephone, her cell phone, and a directory. And the
parties “agree[d] that [Johnson] had an adequate amount of time to contact an attorney.”
But Johnson claims that she did not receive meaningful consultation because the aiding-
and-abetting statute prevented her attorney from advising her that it may be in her best
interests to refuse a test because test refusal is a crime.
Every person who commits or attempts to commit,
conspires to commit, or aids or abets in the commission of
any act declared in this chapter to be an offense, whether
individually or in connection with one or more other persons
or as principal, agent, or accessory, is guilty of that offense,
and every person who falsely, fraudulently, forcibly, or
willfully induces, causes, coerces, requires, permits, or directs
another to violate any provision of this chapter is likewise
guilty of that offense.
Minn. Stat. § 169A.78 (2014). But an attorney does not induce, cause, coerce, require,
permit, or direct a driver to violate a DWI law by informing the driver of the
consequences of test refusal. The supreme court has recognized that the “choice to
submit or refuse to take the test may be a difficult one.” State v. Brooks, 838 N.W.2d
563, 570 (Minn. 2013) (emphasis added) (quotation omitted), cert. denied, 134 S. Ct.
1799 (2014). And a driver makes that choice after consulting with an attorney who
“functions as an objective advisor who could explain the alternative choices.” Id. at 571-
72 (emphasis added) (quotation omitted). Thus, providing information, including
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information on test refusal, is not the equivalent of aiding and abetting a driver in
violating the DWI law. The district court did not err in concluding that Johnson’s pre-test
right to counsel was vindicated.
Affirmed.
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