State of Minnesota, Respondent, vs. Kathleen Marie Hanson, 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This opinion will be unpublished and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

C6-99-2171

Jeffrey Allan Blomquist,
petitioner,

Appellant,
 
vs.
 
Commissioner of Public Safety,
Respondent.

Filed June 6, 2000

Affirmed
Klaphake, Judge

Ramsey County District Court

File No. C7-99-8749

Mary M. McMahon, Michael F. Cromett, 2499 Rice St., Suite 260, Roseville, MN  55113-3724 (for appellant)

Mike Hatch, Attorney General, David S. Voigt, Assistant Attorney General, 525 Park St., Suite 500, St. Paul, MN  55103 (for respondent)

            Considered and decided by Kalitowski, Presiding Judge, Klaphake, Judge, and Foley, Judge.*

KLAPHAKE, Judge

Appellant Jeffrey Allan Blomquist challenges the district court's decision sustaining the revocation of his driver's license under the implied consent law.  When appellant asked to use the bathroom after his arrest for DWI, the trooper told him to wait until after he spoke to an attorney.  The trooper also advised him that he could provide a urine sample and, if after speaking to an attorney he decided not to take the test, the sample would be discarded.  After speaking with an attorney, appellant refused a urine test and a blood test.  The trooper discarded the urine sample and issued a license revocation.  On appeal, appellant contends that his conduct did not constitute a refusal, but even if it did, the refusal was reasonable.  He also contends that the implied consent law is unconstitutional, violating due process because it could improperly be used to enhance later criminal offenses, and that he was entitled to criminal protections.  We conclude that appellant's conduct constituted a refusal, which was not reasonable under the circumstances, and we decline to reach the constitutional issues because appellant failed to set forth a legal argument supporting them. Therefore, we affirm.

            A driver's license may be revoked if the driver refuses to submit to testing under the implied consent statute.  Minn. Stat. § 169.123, subd. 4(c) (1998).  Whether a driver has refused testing and whether a refusal is reasonable are factual determinations to be made by the factfinder.  Lynch v. Commissioner of Pub. Safety, 498 N.W.2d 37, 38 (Minn. App. 1993).  In cases decided without a jury, a district court's factual findings will not be set aside unless clearly erroneous.  Minn. R. Civ. P. 52.01.

            Appellant claims the district court's factual determination that he refused to submit to testing was clearly erroneous.  Trooper Liane Sellner, who was the only witness to appear at appellant's license revocation hearing, testified that she offered appellant the opportunity to take a urine or blood test and that he had previously objected to taking a breath test.  The trooper also read appellant the implied consent advisory and gave him the opportunity to consult with an attorney.  Only appellant's action in requesting to use the restroom altered the routine processing of his case.  Under these circumstances, the court did not err in concluding that appellant refused testing.  See Linde v. Commissioner of Pub. Safety, 586 N.W.2d 807, 810 (Minn. App. 1998) (driver who was given reasonable time to contact attorney held to refuse to test where he would not submit to testing without consulting with attorney), review denied (Minn.  Feb. 18, 1999); State v. Hagen, 529 N.W.2d 712, 714 (Minn. App. 1995) (refusal of urine test and blood test constitutes refusal under implied consent statute).

            Appellant likens this case to a line of cases holding that a driver who initially refuses to submit to testing but immediately changes his or her mind has not refused testing.  See, e.g., Mossak v. Commissioner of Pub. Safety, 435 N.W.2d 578, 579 (Minn. App. 1989), review denied (Minn.  Apr. 10, 1989).  This case is easily distinguishable, however, because appellant's final decision was to refuse testing, and any alleged equivocation occurred prior to that decision.  In addition, his giving a sample did not constitute an agreement to submit to testing; he and Trooper Sellner had agreed that the sample would not be used unless he agreed to do so after consulting with his attorney.  Thus, his only decision on whether to submit to testing was a refusal.  The record supports the district court's determination that appellant refused to submit to testing. 

            Appellant further argues that if he did refuse testing, his refusal was reasonable because "the trooper's departure from the statutory implied consent advisory and scheme was misleading and created confusion rendering any refusal reasonable."  The evidence does not support this claim.  Appellant attempts to create confusion where none existed; Trooper Sellner's unrefuted testimony was that the parties agreed that the sample would be given and held until appellant decided whether to submit to testing after consulting with his attorney.  Any departure from the implied consent advisory was mandated by appellant's need to use the restroom.  His later refusal to submit to testing was not reasonable under these facts.  See Jacob v. Commissioner of Pub. Safety, 409 N.W.2d 283, 287 (Minn. App. 1987) (reasonableness of refusal to submit to testing is question of fact to which appellate court must defer if factual findings are sustained by evidence), review denied (Minn.  Aug. 19, 1987).

            Appellant also claims that his due process rights were violated by 1997 amendments to the implied consent statute, which are included in Minn. Stat. § 169.123, subd. 5c(d) (1998).  In his brief, however, he does not set forth any argument or cite any legal authority, relying on Minn. R. App. P. 128.01, subd. 2, which allows an appellant who files an informal brief to rely on his memoranda to the trial court.  This case does not include informal briefs, however, and thus rule 128.01 does not apply.  Minn. R. App. P. 128.02, which governs formal briefs, requires each appellate brief to contain an argument, including analysis and citation to authorities.  Where a party fails to address an issue on appeal, that failure results in waiver of the issue.  Scruggs v. State, 484 N.W.2d 21, 24 n.1 (Minn. 1992).  Thus, this court declines to address this issue.

            Affirmed.

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