Melisa Joy Haege, petitioner, Respondent, vs. Commissioner of Public Safety, Appellant.

This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480 A. 08, subd. 3 (1998).

 

STATE OF MINNESOTA

IN COURT OF APPEALS

C0-99-1808

 

 

Melisa Joy Haege, petitioner,

Respondent,

 

vs.

 

Commissioner of Public Safety,

Appellant.

 

 

Filed June 6, 2000

Reversed

Judge, Huspeni*

 

Dakota County District Court

 File No. C5998066

 

 

Jeffrey B. Ring, The Interchange Tower, Suite 1690, 600 South Highway 169, Minneapolis, MN 55426  (for respondent)

 

Mike Hatch, Attorney General, Kelly Susan Kemp, Assistant Attorney General, 525 Park Street, Suite 500, St. Paul, MN 55103  (for appellant)

 

 

            Considered and decided by Toussaint, Chief Judge, Peterson, Judge, and Huspeni, Judge.

U N P U B L I S H E D  O P I N I O N

 

HUSPENI, Judge

            Appellant Commissioner of Public Safety appeals from the district court's order rescinding the revocation of respondent Melisa Joy Haege's driver's license.  Appellant argues that the district court erred, as a matter of law, in concluding that Haege's due process rights were violated when Officer Sean Meagher told her of the consequences of refusing to take a breath test, but not the consequences of taking and failing the test.[1]  Because Officer Meagher was not required by law to advise Haege of all the consequences of taking a breath test under the implied consent law, and the information he provided was accurate, there was no due process violation and we reverse.

FACTS

 

            On May 12, 1999, Officer Sean Meagher stopped respondent Melisa Joy Haege for speeding.  After observing indicia of intoxication, Officer Meagher administered the preliminary breath test to Haege.  She failed the test and was arrested for driving while intoxicated (DWI).

            Officer Meagher placed Haege in the back of the police car and read the implied consent advisory, including that refusal to take a test was a crime in itself.  He then asked her if she wanted to consult with an attorney, to which she answered, "No, I don't care."

            As Haege was being transported to the police department, she asked Officer Meagher about the consequences of refusing to take the test.  He responded that a refusal would result in her license being revoked for one year.  Haege consented to taking the test and explained that she was graduating from nursing school in two weeks and could not have a felony in her record in the past five years.  Officer Meagher stated that a DWI was not a felony.

            Once they arrived at the station, Haege once again asked, "So then if I refuse to take the test, then we're finished?" and Officer Meagher responded that he would issue a notice and order of revocation, her driver's license would be revoked for one year, and she would be charged with a DWI. 

            Haege also continued to ask questions about the difference between a felony and a misdemeanor, which Officer Meagher answered.  She also asked, one last time, what would happen if she failed to give an adequate sample of air, to which Officer Meagher responded that it would be considered a refusal and she would lose her license for one year.  At no time did Haege ask Officer Meagher what would happen if she took and failed the test.  Further, on at least two more occasions before taking the test, Officer Meagher asked Haege if she wished to talk with an attorney.  Each time she declined.  Haege submitted to the test, which revealed an alcohol concentration of .16.  She was then told her license was revoked for 90 days.

Haege challenged the revocation of her driver's license and the district court rescinded the revocation, concluding that the officer's failure to advise of the consequences of failing the test resulted in incomplete advice that induced Haege to take the test.

D E C I S I O N

 

            Haege claims that the district court's conclusion that she was induced into taking the breath test by Officer Meagher's incomplete advice is a factual determination and, therefore, this court must apply a "clearly erroneous" standard of review.  We disagree.  Here, the issue is whether Officer Meagher's "incomplete" statements violated Haege's due process rights.  In the absence of disputed facts, the standard of review of a trial court's due process determination is de novo.  Palme v. Commissioner of Pub. Safety, 541 N.W.2d 340, 344 (Minn. App. 1995), review denied (Minn. Feb. 27, 1996).

The district court found that Officer Meagher,

in response to a question from [Haege], advised her that if she failed to take the test, her license would be lost for one year.  [Officer Meagher] did not inform [Haege], nor did she ask, what effect taking the test would have on her license.

 

Based on that finding, the district court rescinded the license revocation "due to the incomplete advice given by [Officer Meagher] which induced [Haege] to take a breath test."  We conclude that on the record before us, the rescission of Haege's license revocation cannot be affirmed.  It is well-settled law that a police officer is not required to advise a motorist of all the consequences of taking a breath test, and that the only mandatory advisory is that required under the implied consent statute.  McDonnell v. Commissioner of Pub. Safety, 473 N.W.2d 848, 853 (Minn. 1991) (stating "a state does not violate fundamental fairness inherent to due process by choosing not to advise individuals of all possible consequences they could face in refusing a breath test"); State v. Abe, 289 N.W.2d 158, 160-61 (Minn. 1980) (same); Fehler v. Commissioner of Pub. Safety, 591 N.W.2d 752, 754 (Minn. App. 1999) (same), review denied (Minn. July 28, 1999).

This case is analogous to Abe, whose facts were nearly identical to those here.  In Abe, the driver was advised under Minn. Stat. § 169.127 (1976)[2] about the legal consequences if he refused a breath test, but was not told that if he took the test and his alcohol concentration was .10, his license would be revoked for 90 days.  Abe, 289 N.W.2d at 160.  The Minnesota Supreme Court found no violation of the driver's due process rights and held that the driver "received the information which the legislature required to be given concerning withdrawal of consent.  This information was accurate and relevant."  Id. at 161.

Here, as in Abe, the driver was given accurate and relevant information required by the legislature through the reading of the implied consent advisory.  Nevertheless, Haege claims that once Officer Meagher told her of the consequences if she refused to take the test, he was obligated to give her complete advice regarding all the consequences, and that his failure to do so was "actively misleading."  We cannot agree.  Haege never asked Officer Meagher about the consequences of taking and failing the test.  We are at a loss to understand how not answering a question that was not asked can be "actively misleading."  Even if we were to find that Officer Meagher had a duty to answer Haege's question about the consequences of not taking the test (and in view of our position over the past several years that it is the attorney, not the officer, who should answer questions, we are hard-pressed to identify any duty at all, Friedman v. Commissioner of Pub. Safety, 473 N.W.2d 828, 833 (Minn. 1991)), we certainly cannot fault Officer Meagher for not answering the question that was not asked. 

Further, Haege's reliance on McDonnell[3]to support her due process argument is misplaced.  The due process violation found in McDonnell arose from the fact that criminal penalties cited in the implied consent advisory did not apply to the driver; the cited penalties were deemed actively misleading because the driver would have refused to take the test if the inapplicable penalties had not been cited.  McDonnell, 473 N.W.2d at 855.  The facts here are easily distinguished from those in McDonnell.  In this case, the implied consent advisory was not flawed and the additional statements Officer Meagher made to Haege were accurate statements of the law.  Moreover, there is no evidence in the record that Haege would have refused to take the test had she known that she could lose her license for 90 days.[4]

Haege argues further that Officer Meagher should have known that she was confused about her rights because she asked him three times what would happen if she refused to take the test.  She claims that as a result of his decision to advise her regarding some, but not all the consequences of taking the test, he actively misled her into believing that if she took the test, she would not lose her license.  Again, we find no merit in Haege's argument.  McDonnell provides that police officers are not required to advise motorists of all consequences of taking a breath test.  Id. at 853.  Instead, as already noted, the role of explaining all of the consequences of a test is now reserved for the attorney.  See Minn. Stat. § 169.123, subd. 2(b)(4) (1998) (requiring officer to inform individual of right to contact an attorney); Friedman, 473 N.W.2d at 833 (stating "An attorney, not a police officer, is the appropriate source of legal advice.").  Here, Haege was asked three times whether she wanted to call an attorney and she refused each time.[5] 

An additional comment on Haege's contention that officers should be required to provide advice in addition to that required by statute:  not only is such a request contrary to law, Friedman, 473 N.W.2d at 833, it is not practical given the complexity of the implied consent statute.[6]  Finally, where the consequences of taking a breath test depend on the application of the implied consent statute to the particular background of the motorist, this court has found that even inaccurate information regarding those consequences, when given in addition to an accurate advisory, is not misleading.  Fehler, 591 N.W.2d at 754.  In Fehler, the driver initially refused to take the breath test, but consented when told that if he failed the test, he would lose his license for only six months.  Id.  In fact, revocation was for one year because of the driver's prior driving record, unknown to the officer at the time the advice was given.  Id.  The revocation was sustained; the court found that the statement was not misleading because precise consequences can be determined only when the specific facts of each case are known, a task reserved for attorneys.  Id. 

In this case, Officer Meagher did not answer a question that was not asked.  There can be no due process violation under these circumstances.  Because the implied consent advisory and Officer Meagher's statements regarding the consequences of refusal were accurate, his failure to advise Haege regarding the consequences of taking and failing the breath test was neither incomplete advice nor "actively misleading."

Reversed.

 

*  Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to Minn. Const. art. VI, § 10.

 

[1]  At trial Haege also claimed that:  (1) her right to contact an attorney was violated, and (2) the implied consent statute violated her due process rights, which the district court rejected.  While the district court does not specifically refer to due process in its order rescinding the revocation of Haege's driver's license, that concept is necessarily implicated.  Haege does not challenge on appeal the trial court's failure to find a due process violation on the issues of contacting an attorney or the content of the implied consent advisory.

[2]  Abe was decided under Minn. Stat. § 169.127 (1976), a provision nearly identical to Minn. Stat. § 169.123 (1998), the current implied consent statute.  Abe, 289 N.W.2d at 160.  Minn. Stat. § 169.127 was repealed in 1978 and the provision addressing the consequences of taking and failing the breath test was incorporated into Minn. Stat § 169.123, subd. 4, that same year.  1978 Minn. Laws ch. 727, §§ 3, 11.  Minn. Stat. § 169.123, subd. 4, provides for the same consequences as those included in section 169.127 revocation of the motorist's license for 90 days if a breath test is taken and the alcohol level is .10.

[3]  In McDonnell, the Supreme Court consolidated four related cases.  The facts to which we refer to are those in the Moser v. Commissioner of Public Safety portion of McDonnell, but because Moser does not have its own citation, we will refer to the case as McDonnell.

[4]  Haege argues that the fact that taking the test and failing it was more advantageous to her than refusing is irrelevant, because in Moser v. Commissioner of Public Safety, the driver was also better off failing the test, yet the court rejected this argument.  We note, nonetheless, that in Moser, the implied consent advisory itself was flawed.

[5]  Although Haege does not directly challenge the trial court's decision regarding the right to contact an attorney, she does claim that given the circumstances, she did not feel like she could ask to call one; that Officer Meagher made her nervous because it was obvious to her that he was waiting to catch speeders, given that he stopped her only one-quarter mile from the 70 mph zone.  In addition, Haege claims that because she was asked if she wanted to call an attorney while she was in the police car, and did not see a phone available, she felt that she did not have easy access to a phone.  None of these factors indicate that Officer Meagher was preventing Haege from contacting an attorney or trying to actively mislead her. 

 

[6]  The exact period of license revocation for taking and failing a breath test depends on whether the motorist:  (1) has an alcohol concentration between .10 and .20 or over .20; (2) is under the age of 21; (3) has prior impaired driving convictions; or (4) prior license revocations within the past five years, it is difficult for police officers to provide motorists with an accurate answer.  Minn. Stat. § 169.123, subd. 4(e)(1)-(4) (1998).