Jason Lee Morzenti v. Commissioner of Public Safety

This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (2012).
STATE OF MINNESOTA
IN COURT OF APPEALS
A13-1592
Jason Lee Morzenti, petitioner,
Appellant,
vs.
Commissioner of Public Safety,
Respondent.
Filed August 18, 2014
Affirmed
Chutich, Judge
Washington County District Court
File No. 82-CV-12-3000
Paul P. Sarratori, Mesenbourg & Sarratori Law Offices, P.A., Coon Rapids, Minnesota
(for appellant)
Lori Swanson, Attorney General, Jacob Fischmann, Assistant Attorney General, Joseph
M. Simmer, Assistant Attorney General, St. Paul, Minnesota (for respondent)
Considered and decided by Chutich, Presiding Judge; Johnson, Judge; and
Rodenberg, Judge.
UNPUBLISHED OPINION
CHUTICH, Judge
Appellant Jason Morzenti challenges the district court’s order sustaining
revocation of his driver’s license, contending that he did not refuse to take a chemical
test, that any refusal was reasonable, and that the implied-consent statute is coercive.
Because the district court properly found that Morzenti refused and that his refusal was
unreasonable, and because the implied-consent statute is not coercive, we affirm.
FACTS
On May 5, 2012, at about 8:40 a.m., Trooper Steven Dauffenbach pulled over a
car that he believed was speeding on Interstate 94 in Woodbury. Trooper Dauffenbach
identified the driver of the car as Morzenti. The trooper arrested Morzenti for suspected
driving while intoxicated and brought him to the Washington County Jail.1
At the jail, Trooper Dauffenbach read the implied-consent advisory to Morzenti
and asked Morzenti if he understood. Morzenti responded, “No, sir.” Trooper
Dauffenbach then read the implied-consent advisory again, after which Morzenti
responded that he understood. Morzenti stated that he wanted to contact an attorney, and
he did so.
The trooper then asked Morzenti if he would take a chemical test, and Morzenti
responded affirmatively. Before the Intoxilyzer was ready to receive a breath sample,
Trooper Dauffenbach explained twice to Morzenti how to give a proper breath sample.
When the Intoxilyzer began its three-minute cycle during which it could receive a
breath sample, the trooper instructed Morzenti to stand up, “wrap [his] lips” around the
mouthpiece, and blow until the trooper told him to stop. Morzenti “just stood there” and
did not provide a sample. The trooper repeated the instructions at least eight times and
cautioned Morzenti that only a short period of time remained in which to give the breath
1
Because the stop and arrest were not at issue, the parties did not develop the record at
the implied-consent hearing.
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sample and that if he did not blow into the machine, it would be considered a refusal to
take the test.
At some point during the three-minute cycle, Morzenti stated that he did not
understand. In response, the trooper again stated what Morzenti needed to do: take a
deep breath, “wrap [his] lips” around the mouthpiece, and blow into the tube. The
trooper also stated, “You’re not confused, you’re playing games.” According to the
trooper, Morzenti did not attempt to “blow into the machine, to lean over or even go for
the mouthpiece. He just stood there straight up and down, staring straight ahead.” After
three minutes, the Intoxilyzer timed out. Trooper Dauffenbach considered Morzenti’s
actions to be a test refusal.
Morzenti was served with a notice and order of revocation of his driver’s license.
Morzenti petitioned the district court for judicial review of the commissioner’s
revocation.
At the implied-consent hearing, Trooper Dauffenbach testified on behalf of the
commissioner. An audio recording of the May 5, 2012 interview was admitted into
evidence. Morzenti, who is a licensed teacher and has a master’s degree, testified on his
own behalf.
Morzenti testified that he did not blow into the mouthpiece for the Intoxilyzer
“[b]ecause the tube wasn’t by my mouth and I didn’t want to grab the tube from the
officer because that’s aggressive.” He testified that after he told the trooper that he did
not understand, the trooper told him that he “did understand” and that he “was playing
games,” and then the trooper “repeated the instructions to blow into the tube.” Morzenti
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did not say anything further to the trooper because he “wished to be cooperative and
polite.” He acknowledged that the trooper asked him to “blow into the machine,” but
Morzenti did not do so because he “would have had to reach across the desk and pull the
tube out of the officer’s hand.”
The district court issued an order sustaining the commissioner’s decision to revoke
Morzenti’s driving privileges. The district court held that Morzenti’s “conduct
constituted test refusal,” finding Morzenti’s explanation for not taking the test
implausible. The district court also held that the implied-consent law is constitutional.
This appeal followed. We stayed the appeal pending the outcome of State v.
Brooks, 838 N.W.2d 563 (Minn. 2013), cert. denied, 134 S. Ct. 1799 (2014). In January
2014, the stay was dissolved.
DECISION
A law-enforcement officer may request that a driver submit to a chemical test of
the person’s blood, breath, or urine, if the officer has “probable cause to believe the
person was driving, operating, or in physical control of a motor vehicle” while impaired.
Minn. Stat. § 169A.51, subd. 1(b) (2012). If a driver refuses to permit a test, “then a test
must not be given.” Minn. Stat. § 169A.52, subd. 1 (2012). A driver’s refusal to submit
to testing results in revocation of the person’s driver’s license for one year. Id.,
subd. 3(a) (2012). “It is an affirmative defense for the petitioner to prove that, at the time
of the refusal, the petitioner’s refusal to permit the test was based upon reasonable
grounds.” Minn. Stat. § 169A.53, subd. 3(c) (2012).
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Whether a driver has refused to submit to a chemical test and whether that refusal
is reasonable are questions of fact that we review for clear error. Lynch v. Comm’r of
Pub. Safety, 498 N.W.2d 37, 38–39 (Minn. App. 1993); Norman v. Comm’r of Pub.
Safety, 412 N.W.2d 22, 23 (Minn. App. 1987). “Conclusions of law may be reversed if
the district court erroneously construed the law.” Busch v. Comm’r of Pub. Safety, 614
N.W.2d 256, 258 (Minn. App. 2000).
I. Whether Morzenti Refused Test
Morzenti asserts that no proof of a refusal exists. “A driver may communicate
refusal to take a test by either words or acts,” and a driver’s “failure to comply reasonably
with the administration of the test can constitute a refusal.” Gabrick v. Comm’r of Pub.
Safety, 393 N.W.2d 23, 25 (Minn. App. 1986) (quotations omitted). If a driver’s actions
frustrate the testing process, the driver’s conduct will amount to a test refusal. Busch,
614 N.W.2d at 259; see Connolly v. Comm’r of Pub. Safety, 373 N.W.2d 352, 354 (Minn.
App. 1985) (affirming district court’s finding that driver refused testing where driver
blew around the mouthpiece of the machine and did not provide an adequate breath
sample); see also Minn. Stat. § 169A.51, subd. 5(c) (2012) (“[F]ailure of a person to
provide two separate, adequate breath samples in the proper sequence constitutes a
refusal.”).
The evidence sufficiently supports the district court’s factual finding that Morzenti
refused to submit to the breath test. While Morzenti initially agreed to take the breath
test, he did not actually provide a breath sample by blowing into the mouthpiece. Even
though he did not verbally refuse the test, his actions are deemed a refusal. The trooper
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explained to him several times how to take the test, but Morzenti did not move his mouth
toward the mouthpiece or even reach for it. The trooper told Morzenti more than once
that if he did not take the test, it would count as a refusal. Morzenti did not make any
movement toward the mouthpiece, and the Intoxilyzer timed out after three minutes.
Morzenti’s actions (or lack thereof) frustrated the testing process and amount to a
test refusal. “An officer is not required to wait for the driver to decide at his convenience
whether or not he will submit to testing.” Gabrick, 393 N.W.2d at 25. The district court
correctly found that Morzenti refused to submit to the test.
II. Whether Refusal Was Reasonable
Morzenti contends that, even if he did refuse to submit to a test, his refusal was
reasonable “based upon [his] expressed confusion.” A driver’s confusion may be a
reasonable basis for refusal. State, Dep’t of Highways v. Beckey, 291 Minn. 483, 485–87,
192 N.W.2d 441, 444–45 (1971) (holding appellant’s refusal reasonable where officer’s
explanation of appellant’s rights was confusing and misleading). Refusal “may be
reasonable if the police have misled a driver into believing a refusal was reasonable or if
the police have made no attempt to explain to a confused driver his obligations.” Frost v.
Comm’r of Pub. Safety, 401 N.W.2d 454, 456 (Minn. App. 1987) (holding refusal
reasonable based on driver’s confusion as to whether he had a right to have a personal
doctor present and officer’s failure to inform driver that his statements would be
considered a refusal).
The district court found that Morzenti’s refusal was not based on reasonable
grounds because he was not actually confused about the testing and because his
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explanation that he did not want to be perceived as aggressive was not plausible. These
findings are supported by the record. Although Morzenti told the trooper that he was
confused, the trooper clearly explained the directions many times; Morzenti did not ask
questions or try to dispel his purported confusion. The district court did not accept as
credible Morzenti’s claimed belief that it would be “aggressive” to take the mouthpiece
from the trooper.
Contrary to Morzenti’s assertion, the trooper did take time to explain what
Morzenti needed to do to take the test. In fact, the district court found that the trooper
explained the process at least eight times. Other than claiming that it would be
aggressive to take the mouthpiece from the trooper—a claim that the district court found
incredible—Morzenti does not explain how he was confused or why simply stating that
he was confused should be deemed reasonable grounds for refusing the test. See Maietta
v. Comm’r of Pub. Safety, 663 N.W.2d 595, 598–99 (Minn. App. 2003) (holding that
caselaw “does not impose an affirmative duty on the part of the police officer to clear up
any and all confusion on the part of a driver”), review denied (Minn. Aug. 19, 2003).
III. Coercion
Morzenti finally argues that the implied-consent statute is coercive because it
“threatens” criminal penalties if a driver refuses to submit to testing.2 We disagree.
2
Minnesota’s implied-consent statute requires that police officers tell drivers who are
suspected of driving while impaired that “Minnesota law requires [he or she] to take a
test” to determine whether they are “under the influence of alcohol,” that “refusal to take
a test is a crime,” and that he or she has the right to talk to an attorney, but this right is
“limited to the extent that it cannot unreasonably delay administration of the test.” Minn.
Stat. § 169A.51, subds. 1, 2 (2012).
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Under the Minnesota Supreme Court’s decision in State v. Brooks, “a driver’s
decision to agree to take a test is not coerced simply because Minnesota has attached the
penalty of making it a crime to refuse the test.” 838 N.W.2d at 570. And in McDonnell
v. Commissioner of Public Safety, our supreme court stated that “[t]he fact that certain
individuals may face criminal charges for refusing to undergo testing in no way compels
those individuals to refuse.” 473 N.W.2d 848, 855–56 (Minn. 1991). Therefore,
Morzenti’s argument is unpersuasive.
Affirmed.
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