Kristin Marie Poeschel v. Commissioner of Public Safety , 871 N.W.2d 39 ( 2015 )

STATE OF MINNESOTA
IN COURT OF APPEALS
A15-0142
Kristin Marie Poeschel, petitioner,
Appellant,
vs.
Commissioner of Public Safety,
Respondent.
Filed October 26, 2015
Affirmed
Larkin, Judge
Goodhue County District Court
File No. 25-CV-14-2362
Charles A. Ramsay, Daniel J. Koewler, Suzula R. Bidon, Ramsay Law Firm, PLLC,
Roseville, Minnesota (for appellant)
Lori Swanson, Attorney General, William J. Young, Assistant Attorney General, St. Paul,
Minnesota (for respondent)
Considered and decided by Smith, Presiding Judge; Peterson, Judge; and Larkin,
Judge.
SYLLABUS
An officer does not violate a driver’s statutory right to an additional chemical test
under Minnesota’s implied-consent law by not offering the driver use of a telephone after
the state’s test, where the driver does not request posttest access to a telephone.
OPINION
LARKIN, Judge
Appellant challenges the district court’s order sustaining the revocation of her
driver’s license under Minnesota’s implied-consent law, arguing that her statutory right to
an additional chemical test was not vindicated and that her fundamental rights to due
process were violated. We affirm.
FACTS
On August 4, 2014, Officer Brad Arens of the Prairie Island Police Department
responded to a gas station to investigate a report that an individual was unable to pay for
gasoline. Officer Arens identified the individual as appellant Kristin Marie Poeschel.
Officer Arens noticed that Poeschel’s speech was slurred, her eyes were glossy, and her
breath smelled like alcohol. Poeschel admitted that she had consumed alcoholic
beverages and that she had driven to the gas station.
Officer Arens arrested Poeschel for driving while impaired (DWI), transported her
to the Prairie Island Public Safety Office, and read her Minnesota’s implied-consent
advisory. Poeschel contacted an attorney. While Poeschel was on the telephone with the
attorney, she informed the officer that she wanted an additional test. She also asked if the
officer had a warrant for chemical testing. Poeschel told the officer that, “[b]ecause I am
being coerced, I will give you a test” and “I’ll take the urine test because I am required
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to.”1 Poeschel was transported to the Goodhue County Jail, where she provided a urine
sample. She did not repeat her earlier request for an additional test after providing the
sample. Chemical testing of the sample revealed an alcohol concentration of 0.141,
prompting respondent commissioner of public safety to revoke Poeschel’s driver’s
license.
Poeschel petitioned for judicial review of the license revocation, arguing that the
collection of her urine was a warrantless search in violation of the Fourth Amendment,
that she was denied due process of law, and that her statutory right to an additional test
was not vindicated. The district court sustained the license revocation, determining that
(1) the warrantless collection of Poeschel’s urine did not violate the Fourth Amendment
because she voluntarily consented to provide the sample; (2) Poeschel “was not misled by
the virtue of the language contained within the Minnesota Motor Vehicle Implied
Consent Advisory in violation of her due process rights”; and (3) Poeschel was not
denied her statutory right to an additional test.
Poeschel appeals.
ISSUES
I. When proceeding under Minnesota’s implied-consent statute, is an officer
required to offer a driver posttest use of a telephone where the driver informs the officer
that she wants an additional chemical test but does not request posttest access to a
telephone?
1
The recording of the conversation between Officer Arens and Poeschel was not
included in the record available to this court. This account is based on undisputed facts
as they were presented in the parties’ briefs.
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II. Do appellant’s constitutional claims provide a basis for relief?
ANALYSIS
I.
Poeschel contends that the results of the state’s chemical test of her urine are
inadmissible because law enforcement failed to vindicate her statutory right to an
additional chemical test. 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 and the driver “has been lawfully placed under arrest” for driving while
impaired. Minn. Stat. § 169A.51, subd. 1(b) (2014). However,
[t]he person tested has the right to have someone of the
person’s own choosing administer a chemical test or tests in
addition to any administered at the direction of a peace
officer; provided, that the additional test sample on behalf of
the person is obtained at the place where the person is in
custody, after the test administered at the direction of a peace
officer, and at no expense to the state. The failure or inability
to obtain an additional test or tests by a person does not
preclude the admission in evidence of the test taken at the
direction of a peace officer unless the additional test was
prevented or denied by the peace officer.
Minn. Stat. § 169A.51, subd. 7(b) (2014) (emphasis added).
Whether an officer unlawfully prevented or denied an additional test involves both
questions of law and of fact. Schulz v. Comm’r of Pub. Safety, 760 N.W.2d 331, 333
(Minn. App. 2009). “The district court’s findings of fact must be sustained unless clearly
erroneous, but this court reviews de novo whether, as a matter of law, the driver’s right to
an independent test was [violated].” Id.
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“In determining whether an additional test has been prevented or denied, we must
draw a distinction between an officer’s failing to assist and an officer’s hampering an
attempt to obtain such a test.” Haveri v. Comm’r of Pub. Safety, 552 N.W.2d 762, 765
(Minn. App. 1996), review denied (Minn. Oct. 29, 1996). An officer must allow an
additional test to be administered, but “need not act affirmatively to facilitate the test.”
Id. “The only obligation an officer has in assisting the defendant in obtaining an
additional test is to allow defendant use of a phone.” Frost v. Comm’r of Pub. Safety,
348 N.W.2d 803, 804 (Minn. App. 1984). The officer is not required to arrange an
opportunity for a driver to obtain additional testing. Hager v. Comm’r of Pub. Safety,
382 N.W.2d 907, 912 (Minn. App. 1986). Moreover, “[i]t is the duty of attorneys, not
police officers, to explain the extent and scope of the right to an additional test while the
driver is in custody.” Duff v. Comm’r of Pub. Safety, 560 N.W.2d 735, 738 (Minn. App.
1997) (quotation omitted). Advice and assistance regarding additional testing should
come from an attorney. See Hotchkiss v. Comm’r of Pub. Safety, 553 N.W.2d 74, 78
(Minn. App. 1996) (noting that an attorney is the appropriate source of legal advice
regarding additional testing), review denied (Minn. Oct. 29, 1996).
Poeschel contends that her pretest telephone access was insufficient to vindicate
her right to an additional test. She argues that “[b]ecause a driver is only entitled to an
additional test after first submitting to the test requested by law enforcement, it follows
that vindication of the right to an additional test requires post-test access to a telephone”
and that “law enforcement had a duty to provide [her] with telephone access to arrange an
independent test after she submitted to the State’s test.”
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Poeschel does not cite, and we are not aware of, any caselaw directly supporting
her contention that an officer’s obligation to allow the use of a telephone for the purpose
of obtaining an additional test can only be satisfied after the state’s test is administered.
In fact, caselaw refutes Poeschel’s contention. For example, this court has stated that the
pretest right to counsel provides an opportunity for an attorney to advise the driver
regarding the right to additional testing and to assist the driver in obtaining additional
testing. Davis v. Comm’r of Pub. Safety, 509 N.W.2d 380, 386-87 (Minn. App. 1993),
aff’d, 517 N.W.2d 901 (Minn. 1994). Also, this court has held that a driver’s limited
right to pretest counsel was violated where a police officer terminated the driver’s
telephonic attorney consultation before the driver had an opportunity to obtain advice
regarding additional testing. Duff, 560 N.W.2d at 738. In doing so, we rejected the
commissioner’s argument that a driver’s pretest failure to receive advice regarding
additional testing is inconsequential because such advice could reasonably be postponed
until after the state’s test. Id.
Poeschel relies on Theel v. Comm’r of Pub. Safety, 447 N.W.2d 472 (Minn. App.
1989), review denied (Minn. Jan. 8, 1990). In Theel, the driver asked for additional
testing and attempted to arrange a test after submitting to the state’s test. 447 N.W.2d at
473. The driver made several calls to hospitals, but no one from the hospitals would go
to the jail to administer a chemical test. Id. The driver told the jail staff that he was not
able to get help from any hospital and asked if he could call an attorney to arrange an
additional test. Id. The staff responded “[f]orget it. They’re all sleeping.” Id. This court
determined that the driver “wanted to call an attorney to assist him in exercising his right
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to obtain an additional test and the officer hindered his attempt.” Id. at 474. This court
therefore held that the driver’s statutory right to additional testing was prevented or
denied. Id.
Unlike the circumstances in Theel, the record does not reveal any attempt by
Poeschel to arrange an additional test. More importantly, Poeschel did not ask to use a
telephone to arrange an additional test after she submitted to the state’s test. If the officer
in this case had refused such a request, we would likely conclude that the officer
prevented or denied an additional test. See id. But those are not the circumstances here.
Essentially, Poeschel asks this court to create an affirmative duty requiring an
officer to offer a driver posttest use of a telephone to arrange an additional test even
though the driver has not asked to use the phone. We decline to do so. Caselaw
consistently describes an officer’s obligation as allowing the use of a telephone, as
opposed to offering the use of a telephone. See, e.g., Cosky v. Comm’r of Pub. Safety,
602 N.W.2d 892, 894-95 (Minn. App. 1999) (determining that a driver’s right to
additional testing was vindicated when “all of [the driver’s] requests to use a telephone
were granted”), review denied (Minn. Jan. 18, 2000); Hotchkiss, 553 N.W.2d at 77
(stating that the statute imposes no obligations on officers “other than to allow the
defendant use of a phone”); State v. Whitehead, 458 N.W.2d 145, 150 (Minn. App. 1990)
(concluding that officer did not prevent an additional test where the driver was never
refused use of a telephone), review denied (Minn. Sept. 14, 1990); Theel, 447 N.W.2d at
474 (“The only obligation an officer has is to allow the use of a telephone.”); Hager, 382
N.W.2d at 911 (“Even while in custody, the only obligation that [the officer] had was to
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allow [the driver] the use of a telephone.”); Frost, 348 N.W.2d at 804 (“The only
obligation an officer has . . . is to allow [the] defendant use of a phone.”).
Requiring an officer to offer posttest use of a telephone in the absence of a request
would mandate assistance that is not required under law. See Schulz, 760 N.W.2d at 334
(noting that “the law significantly limits a peace officer’s obligations with regard to a
driver’s exercise of the statutory right to an additional test”); Haveri, 552 N.W.2d at 765
(distinguishing between failing to assist and hampering when determining whether the
statutory right to an additional test has been vindicated).
Poeschel had the opportunity to consult with an attorney on the telephone
regarding the implied-consent process and her statutory right to an additional test. She
does not allege that the officer inappropriately limited her attorney consultation. And she
did not mention additional testing or ask to use a telephone after her attorney consultation
or after the state’s test. These undisputed facts show that the officer did not prevent or
deny an attempt to obtain additional testing. In sum, Poeschel’s statutory right to an
additional test was not violated.
II.
Poeschel also contends that the revocation of her driver’s license must be
rescinded “because law enforcement violated [her] fundamental due process rights under
the United States and Minnesota Constitutions.” “Whether a due process violation has
occurred presents a question of constitutional law, which [appellate courts] review de
novo.” State v. Beecroft, 813 N.W.2d 814, 836 (Minn. 2012). We address each of
Poeschel’s due-process claims in turn.
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Warrantless Search
Poeschel first claims that she “had a fundamental, due process right to a warrant
issued by a neutral magistrate” and that “the commissioner did not meet its burden to
prove that a specifically established and well delineated exception to the warrant
requirement is present in [this] case.” Although Poeschel attempts to frame her first
claim as one sounding in due process, it is a Fourth Amendment claim. “[I]f a claim is
covered by a specific constitutional provision, that claim must be analyzed according to
the standards established by the specific provision, and not as a possible violation of the
claimant’s substantive-due-process rights.” State v. Mellett, 642 N.W.2d 779, 783 (Minn.
App. 2002), review denied (Minn. July 16, 2002).
The United States and Minnesota Constitutions prohibit the unreasonable search
and seizure of “persons, houses, papers, and effects.” U.S. Const. amend. IV; Minn.
Const. art. I, § 10. The collection of a urine sample is a search under the Fourth
Amendment. Mell v. Comm’r of Pub. Safety, 757 N.W.2d 702, 709-10 (Minn. App.
2008). Warrantless searches are per se unreasonable, subject to limited exceptions. State
v. Othoudt, 482 N.W.2d 218, 222 (Minn. 1992). The state bears the burden of
establishing the existence of an exception to the warrant requirement. State v. Ture, 632
N.W.2d 621, 627 (Minn. 2001). One such exception is consent. Schneckloth v.
Bustamonte, 412 U.S. 218, 219, 93 S. Ct. 2041, 2043-44 (1973). “For a search to fall
under the consent exception, the State must show by a preponderance of the evidence that
the defendant freely and voluntarily consented.” State v. Brooks, 838 N.W.2d 563, 568
(Minn. 2013), cert. denied 134 S. Ct. 1799 (2014).
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“Whether consent is voluntary is determined by examining the totality of the
circumstances.” Id. (quotation omitted). The question of whether an individual
voluntarily consented to a search is a question of fact. Schneckloth, 412 U.S. at 227, 93
S. Ct. at 2047-48. Therefore, this court reviews the district court’s finding of voluntary
consent for clear error. State v. Diede, 795 N.W.2d 836, 846 (Minn. 2011). “Findings of
fact are clearly erroneous if, on the entire evidence, [a reviewing court is] left with the
definite and firm conviction that a mistake occurred.” Id. at 846-47.
Poeschel argues that the district court erred by determining that she freely and
voluntarily consented to the collection of her urine sample. Whether Poeschel voluntarily
consented requires consideration of all of the relevant circumstances, including “the
nature of the encounter, the kind of person the defendant is, and what was said and how it
was said.” Brooks, 838 N.W.2d at 569 (quotation omitted).
Our review of the record does not leave us with a definite and firm conviction that
the district court erroneously found that Poeschel’s consent was voluntary. We are
guided by Brooks, in which the supreme court concluded that a driver voluntarily
consented to three chemical tests for alcohol concentration because he did not dispute
that the police had probable cause to believe that he had been driving under the influence;
he did not “contend that police did not follow the proper procedures established under the
implied consent law”; the police read “the implied consent advisory before asking [the
driver] whether he would take all three tests, which makes clear that drivers have a choice
of whether to submit to testing”; the “police gave [the driver] access to telephones to
contact his attorney and he spoke to a lawyer”; and “[a]fter consulting with his attorney,
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[the driver] agreed to take the tests in all three instances.” Id. at 569-70, 572. The
supreme court further noted that, although the driver was in custody, he “was neither
confronted with repeated police questioning nor was he asked to consent after having
spent days in custody.” Id. at 571.
Applying Brooks, the circumstances do not suggest that Poeschel was coerced into
providing a urine sample. As in Brooks, Poeschel does not dispute that Officer Arens had
probable cause to believe that she had been driving under the influence or that he
properly read the implied-consent advisory. Poeschel indicated that she understood the
implied-consent advisory and, after consulting with an attorney, she agreed to submit to
chemical testing. Lastly, when Poeschel agreed to provide a urine sample, she had not
been confronted with repeated police questioning or held in custody for an unreasonable
period of time.
Poeschel argues that her consent was involuntary because she told the officers
“she would take the urine test only because she was required to do so by law.” But in
Brooks, the supreme court rejected the argument that consent is per se involuntary
because of the attendant threat of a criminal charge for test refusal, concluding that “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.” Id. at 570.
Poeschel further argues that her consent was involuntary because there are
“several undeniably coercive facts” in her case, including that she was asked to perform
field sobriety tests, handcuffed during her arrest, and placed in a locked police car. But
in Brooks the supreme court found that Brooks’s consent was voluntary even though he
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was impaired by alcohol, under arrest, and in custody. Id. at 565-66, 572. Rather than
showing an “undeniably coercive” atmosphere, the facts here show a routine arrest for
DWI. The record does not suggest that Poeschel “was coerced in the sense that [her] will
had been overborne and [her] capacity for self-determination critically impaired.” See id.
at 571 (quotation omitted). In sum, the district court did not clearly err by finding that
Poeschel voluntarily consented to provide a urine sample for chemical testing.
Summary Advisory
Poeschel also claims that her due-process rights were violated because the officer
told her that refusal to submit to a urine test was a crime even though she could have
legally refused to submit to a urine test so long as she ultimately submitted to a chemical
test. See Minn. Stat. § 169A.51, subd. 3 (2014) (“The peace officer who requires a test
pursuant to this section may direct whether the test is of blood, breath, or urine. Action
may be taken against a person who refuses to take a blood test only if an alternative test
was offered and action may be taken against a person who refuses to take a urine test
only if an alternative test was offered.”).
This court rejected a similar claim in Moe v. Comm’r of Pub. Safety, 574 N.W.2d
96 (Minn. App. 1998), review denied (Minn. Apr. 14, 1998). In Moe, two drivers were
arrested for driving under the influence. Id. at 97. Both drivers were read the implied-
consent advisory and told that “refusal to take a test is a crime.” Id. at 97-98. Both
drivers consented to provide samples for testing. Id. The drivers later challenged the
revocations of their licenses, arguing that
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the advisory, which failed to offer an alternative test, was
inaccurate, misleading, and threatened them with potential
criminal penalties that the state was not authorized to impose.
See McDonnell v. Comm’r of Pub. Safety, 473 N.W.2d 848,
854-55 (Minn. 1991) (holding part of implied consent
advisory unconstitutional where it threatened unauthorized
criminal charges).
Id. at 98. This court rejected that argument, noting that “a state does not violate the
fundamental fairness inherent to due process by choosing not to advise individuals of all
the possible consequences of refusing an alcohol concentration test.” Id. We held that
“[a] peace officer’s use of a summary advisory does not violate the law where the
summary is accurate, the driver’s right to counsel is vindicated, and the driver consents to
the offered test.” Id. at 99.
Here, the implied-consent advisory accurately stated that refusal to take a test is a
crime, Poeschel’s right to counsel was vindicated, and she voluntarily consented to the
test that was offered. The summary advisory therefore did not violate Poeschel’s right to
due process.
Waiver of Statutory Right
Lastly, Poeschel claims that
Officer Arens violated [her] due process rights by
failing to obtain [her] knowing and intentional waiver of her
statutory right to refuse to permit a test. Without a valid
waiver of the statutory right, the evidence generated by the
violation of that statutory right–the urine test results–is
inadmissible in this proceeding.
Poeschel does not offer due-process analysis or authority to support her last due-
process claim. Nor does she offer legal argument or authority to support her assertion
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that invalid waiver of a statutory right requires suppression of evidence in a civil
proceeding. An assignment of error in a brief based on “mere assertion” and not
supported by argument or authority is waived unless prejudicial error is obvious on mere
inspection. State v. Modern Recycling, Inc., 558 N.W.2d 770, 772 (Minn. App. 1997).
Because prejudicial error is not obvious, we do not address the merits of Poeschel’s last
due-process claim.
DECISION
Because the police did not prevent or deny an additional chemical test by not
offering Poeschel use of a telephone in the absence of a request, her statutory right to an
additional test was not violated. In addition, the district court did not err by finding that
Poeschel voluntarily consented to the collection of a urine sample for chemical testing
and concluding that the warrantless collection therefore did not violate the Fourth
Amendment. Lastly, Poeschel’s due-process claims do not provide a basis for relief. We
therefore affirm the district court’s order sustaining the revocation of Poeschel’s driver’s
license.
Affirmed.
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