Stephanie Ann Keim v. Commissioner of Public Safety ( 2014 )

This opinion will be unpublished and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
A13-1816
Stephanie Ann Keim, petitioner,
Appellant,
vs.
Commissioner of Public Safety,
Respondent.
Filed August 25, 2014
Affirmed
Reilly, Judge
Wright County District Court
File No. 86-CV-13-2713
Kirk M. Anderson, Anderson Law Firm, PLLC, Minneapolis, Minnesota (for appellant)
Lori Swanson, Attorney General, Jacob Fischmann, Assistant Attorney General, St. Paul,
Minnesota (for respondent)
Considered and decided by Halbrooks, Presiding Judge; Hudson, Judge; and
Reilly, Judge.
UNPUBLISHED OPINION
REILLY, Judge
Appellant Stephanie Ann Keim challenges the district court’s order sustaining the
revocation of her driving privileges under the implied consent law, arguing that the
district court wrongly admitted hearsay evidence regarding the traffic stop. Appellant
further argues that the warrantless urine test was unconstitutional and her right to counsel
was not vindicated. We affirm.
FACTS
On April 14, 2013, Deputy Bobbi Olson of the Wright County Sheriff’s Office
was assigned to a high priority call involving a threat of suicide. While traveling
southbound on County Road 12, Deputy Olson caught up to a vehicle driven by
appellant. Deputy Olson saw appellant’s vehicle cross over the center line six or seven
times, veer to the right shoulder, and strike the curb before correcting back into the
driving lane. Deputy Olson contacted Deputy Nick Lee to assist in stopping appellant’s
vehicle while Deputy Olson continued to her initial destination. While speaking with
Deputy Lee, Deputy Olson saw appellant’s vehicle veer off to the right and strike the
curb again. Deputy Olson shared her observations regarding appellant’s driving conduct
with Deputy Lee while the officers were speaking on the phone. Appellant’s vehicle
slowed down and continued to drive on the shoulder, at which point Deputy Olson
determined it was unsafe to let appellant continue driving and initiated a traffic stop.
Deputy Lee arrived at the scene and Deputy Olson continued to the high priority
call. Deputy Lee approached the vehicle at 9:23 p.m. and noticed that appellant had
bloodshot and watery eyes, slurred speech, and smelled of an alcoholic beverage.
Appellant admitted to Deputy Lee that she had consumed two alcoholic drinks. The
officer conducted a series of standard field sobriety tests and administered a preliminary
breath test, which revealed an alcohol concentration of .153. The officer placed appellant
under arrest for suspicion of driving under the influence and transported her to jail.
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At 10:07 p.m., Deputy Lee read appellant the Minnesota implied consent advisory.
Appellant asked to speak to an attorney and a telephone was made available to her.
Appellant said she did not have the telephone number for her attorney and Deputy Lee
located the attorney’s telephone number and dialed the telephone for her. Appellant
spoke to someone at her attorney’s office for several minutes and then stated that she was
finished. Deputy Lee asked appellant if she would take a breath test and she refused.
After speaking with her attorney a second time, appellant agreed to take a breath test and
it was administered at 10:25 p.m.
Appellant did not blow enough air into the breath-testing machine and, after two
attempts, it registered a deficient sample. The officer reread appellant the implied
consent advisory at 10:50 p.m. and gave appellant another opportunity to speak with her
attorney. Appellant attempted to call her attorney over 15 times but was unsuccessful.
Deputy Lee reread the implied consent advisory and emphasized that if appellant was
unable to contact an attorney she would have to make a decision on her own. Appellant
made another telephone call and stated that she was done. Appellant agreed to take a
urine test and the toxicology report showed an alcohol concentration of .15.
Appellant’s driving privileges were subsequently revoked as a result of the
chemical test. Appellant filed a petition seeking rescission of her driver’s license
revocation and challenging the constitutionality of the urine test. Appellant raised a
hearsay objection at the implied consent hearing, challenging the basis for the initial stop
because Deputy Olson was unavailable to testify at the hearing. The district court did not
credit this argument. It determined that the standard for a motor vehicle stop was “less
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than probable cause” under Minnesota Rule of Evidence 1101 and that “reasonable
suspicion can be established by information received from other individuals.” The
district court sustained appellant’s driver’s license revocation and this appeal followed.
DECISION
I.
“Rulings on evidentiary matters rest within the sound discretion of the district
court and will not be reversed on appeal absent a clear abuse of discretion.” In re Source
Code Evidentiary Hearings in Implied Consent Matters, 816 N.W.2d 525, 537 (Minn.
2012). An appellant has the burden of establishing that the district court abused its
discretion and that the appellant was prejudiced. State v. Amos, 658 N.W.2d 201, 203
(Minn. 2003).
Deputy Olson was unavailable to testify during the implied consent hearing.
Deputy Lee was ready to testify at the implied consent hearing but never actually did.
Instead the parties stipulated to the admission of the police reports and agreed that the
district court could consider the reports in reaching its decision.
However, appellant argued that the district court should disregard what Deputy
Olson told Deputy Lee on the telephone because those statements violated the hearsay
rule. The district court concluded that reasonable suspicion could be established by
information received from other individuals and would allow Deputy Lee’s testimony
regarding the initial traffic stop. The district court recognized that the rules of evidence
apply “to all actions and proceedings in the courts of this state.” Minn. R. Evid. 1101.
Rule 1101 enumerates certain situations where the rules of evidence do not apply
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including preliminary questions of fact, grand juries, contempt proceedings, and
“miscellaneous” proceedings such as probable cause hearings. Id. The district court
determined that, because “the standard for a motor vehicle stop is less than probable
cause,” the rules of evidence did not apply and Deputy Lee could testify as to the basis
for the stop.
Appellant argues that the district court misapplied the rules of evidence by
considering Deputy Lee’s proffered testimony about what Deputy Olson told him
regarding the basis for stopping appellant’s vehicle, in violation of Minnesota’s hearsay
rules. It is well-settled that implied consent proceedings are civil in nature. State v.
Wagner, 637 N.W.2d 330, 337 (Minn. App. 2001). Accordingly, the rules of evidence
apply and reliable hearsay statements are admissible in implied consent proceedings. See
Heuton v. Comm’r of Pub. Safety, 541 N.W.2d 361, 363 (Minn. App. 1995) (applying
rules of evidence); Kunz v. Comm’r of Pub. Safety, 349 N.W.2d 593, 596 (Minn. App.
1984) (same).
Hearsay is a “statement, other than one made by the declarant while testifying at
the trial or hearing, offered in evidence to prove the truth of the matter asserted.” Minn.
R. Evid. 801(c). Hearsay is admissible only when specifically provided for by the rules
of evidence. Minn. R. Evid. 802. Hearsay may be admissible under certain exceptions,
including statements of a declarant’s then existing state of mind. Minn. R. Evid. 803(3).
Rule 803(3) provides in relevant part that “[a] statement of the declarant’s then existing
state of mind, emotion, sensation, or physical condition” are not excluded by the hearsay
rule.
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Here, the record shows that while Deputy Lee and Deputy Olson were speaking on
the telephone, Deputy Olson relayed her observations about appellant’s driving conduct
as it was happening. The state argues that Deputy Lee’s testimony was admissible as an
exception to the hearsay rule. To be admissible under the state-of-mind exception, “[t]he
statement must be contemporaneous with the mental state sought to be proven,” there
must be “no suspicious circumstances suggesting a motive for the declarant to fabricate
or misrepresent his or her thoughts,” and the declarant’s state of mind “must be relevant
to an issue in the case.” State v. DeRosier, 695 N.W.2d 97, 104-05 (Minn. 2005).
Deputy Olson’s statements to Deputy Lee occurred contemporaneously with the
vehicle stop, they were relevant to an issue in the case, and there has been no suggestion
that Deputy Olson had a motive to fabricate her thoughts. Deputy Lee’s testimony was
admissible as a “statement of the declarant’s then existing state of mind,” Minn. R. Evid.
803(3), and the district court did not abuse its discretion in holding that Deputy Lee could
testify regarding the basis for the stop of appellant’s vehicle. Moreover, the district
court’s findings are supported by its consideration of Deputy Olson’s police reports.
During the implied consent hearing, appellant stipulated to the admission of the police
reports, the implied consent advisory, and the test results. The parties agreed that the
district court could consider the police reports in rendering its decision. Appellant has
not challenged the trustworthiness of these police reports on appeal.
We are further persuaded by the state’s argument that Deputy Lee’s testimony was
admissible under the collective-knowledge doctrine. Under this doctrine, “the entire
knowledge of the police force is pooled and imputed to the arresting officer for the
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purpose of determining if sufficient probable cause exists for an arrest.” State v.
Conaway, 319 N.W.2d 35, 40 (Minn. 1982). The collective knowledge of the police
“may provide the basis for an investigatory stop,” and the factual basis justifying an
investigatory stop “need not be known to the officer acting in the field.” Magnuson v.
Comm’r of Pub. Safety, 703 N.W.2d 557, 559-60 (Minn. App. 2005). Thus, it is not
necessary for the arresting officer to have firsthand knowledge of the facts substantiating
the arrest. State v. Radil, 288 Minn. 279, 283, 179 N.W.2d 602, 605 (1970). Instead, an
officer may act “on the strength of information received from the department.”
Conaway, 319 N.W.2d at 40. Here, the district court correctly recognized that
“reasonable suspicion can be established by information received from other individuals”
and imputed Deputy Lee with knowledge of the facts known by Deputy Olson in
conducting the arrest. See State v. Lemieux, 726 N.W.2d 783, 789 (Minn. 2007)
(imputing knowledge of officers involved in a search when some degree of
communication existed between officers). We therefore conclude that the district court’s
reliance on the collective-knowledge doctrine was not an abuse of its discretion.
II.
Appellant challenges the constitutionality of the warrantless chemical test. The
United States and Minnesota Constitutions prohibit unreasonable searches and seizures.
U.S. Const. amend. IV; Minn. Const. art. I, § 10. A blood, breath, or urine sample
constitutes a search. Skinner v. Ry. Labor Execs.’ Ass’n, 489 U.S. 602, 616-17, 109 S.
Ct. 1402, 1413 (1989); State v. Brooks, 838 N.W.2d 563, 568 (Minn. 2013), cert. denied,
134 S. Ct. 1799 (2014). A warrantless search is valid “if the subject of the search
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consents.” Id. In order for the consent exception to apply, the state must show by a
preponderance of the evidence that the defendant “freely and voluntarily consented.” Id.Whether consent is voluntary must be determined on a case-by-case basis examining the
totality of the circumstances. State v. Lemert, 843 N.W.2d 227, 233 (Minn. 2014) (citing
Missouri v. McNeely, 133 S. Ct. 1552, 1563 (2013)). This analysis includes “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 (citation omitted).
Given the totality of the circumstances, the uncontested facts demonstrate that
appellant’s consent was freely and voluntarily given. Appellant performed field sobriety
tests as requested by the officer, who also administered a preliminary breath test. Based
upon her observations of these test results, the officer placed appellant under arrest and
read her the implied consent advisory. The wording of the advisory is compelled by
statute as set forth in Minnesota Statute section 169A.51, subdivision 2 (2012). Under
Minnesota’s implied consent law, anyone who drives a motor vehicle in the state
consents to a chemical test for the purpose of determining the presence of alcohol when
certain conditions are met. Minn. Stat. § 169A.51, subd. 1(a) (2012); Brooks, 838
N.W.2d at 569. A police officer may require someone to submit to a test when the officer
“has probable cause to believe the person committed the offense of driving while
impaired and the person has been lawfully arrested for driving while impaired.” Brooks,
838 N.W.2d at 569. As part of the advisory, appellant was told both that Minnesota law
requires the person to take a test and that refusing to submit to the test is a crime. Minn.
Stat. § 169A.51, subd. 2(1)-(2).
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Appellant contends that she was unable to consult with an attorney prior to taking
the urine test. The Minnesota Supreme Court has articulated that under the right-to-
counsel clause in article I, section 6 of the Minnesota Constitution, “an individual has the
right, upon request, to a reasonable opportunity to obtain legal advice before deciding
whether to submit to chemical testing.” Friedman v. Comm’r of Pub. Safety, 473 N.W.2d
828, 835 (Minn. 1991). However, due to the “evanescent nature” of the evidence in DWI
cases, the accused is only entitled to a limited amount of time within which to contact an
attorney. Id. An individual’s right to counsel is considered vindicated when he or she is
provided with a telephone prior to testing and given a reasonable amount of time within
which to contact and consult with an attorney. Nelson v. Comm’r of Pub. Safety, 779
N.W.2d 571, 574 (Minn. App. 2010).
Appellant was properly advised of her right to counsel. Deputy Lee read the
implied consent advisory numerous times, each time explaining to appellant her right to
consult with an attorney for the purpose of deciding whether to submit to a chemical test.
Deputy Lee assisted appellant in finding her attorney’s phone number and allowed her to
use the telephone numerous times to seek counsel. Appellant spoke with an individual at
her attorney’s office prior to taking a breath test. The fact that she was unable to reach
her attorney on subsequent attempts to discuss the urine test does not invalidate the test.
Indeed, the right to counsel is vindicated even when the accused cannot locate his or her
own attorney and there are no other attorneys the accused wishes to call. Kuhn v.
Comm’r of Pub. Safety, 488 N.W.2d 838, 841-42 (Minn. App. 1992), review denied
(Minn. Oct. 20, 1992). Appellant was given the opportunity to speak with an attorney
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and agreed to submit to a urine test. The district court did not err in determining that
appellant freely and voluntarily consented to a urine test after having a reasonable
amount of time within which to consult with an attorney and sustaining the revocation of
appellant’s driving privileges.
Affirmed.
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