Steven Dale Schlink, petitioner, Appellant vs. Commissioner of Public Safety, Respondent.

This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480 A. 08, subd. 3 (2002).

 

STATE OF MINNESOTA

IN COURT OF APPEALS

C2-02-2051

 

 

Steven Dale Schlink,

petitioner,

Appellant

 

vs.

 

Commissioner of Public Safety,

Respondent.

 

 

Filed July 15, 2003

Affirmed

Anderson, Judge

 

Otter Tail County District Court

File No. C6021631

 

Charles A. Ramsay, Rebecca Rhoda Fisher, Ramsay, Devore & Olson, P.A., 2860 Snelling Avenue North, Roseville, MN  55113 (for appellant)

 

Mike Hatch, Attorney General, Sheila M. Fitzgerald Steichen, Assistant Attorney General, Leanne Geralyn Litfin, Assistant Attorney General, 525 Park Street, Suite 500, St. Paul, MN  55103 (for respondent)

 

            Considered and decided by Anderson, Presiding Judge, Peterson, Judge, and Halbrooks, Judge.

U N P U B L I S H E D  O P I N I O N

 

G. BARRY ANDERSON, Judge

 

Arguing that his constitutional right to due process was violated because the arresting officer gave him inaccurate legal advice, appellant challenges the district court's order sustaining the revocation of his driver's license under Minn. Stat. § 169 A. 52, subd. 4(a)(4) (2002).  Because we conclude that the officer did not actively mislead appellant, we affirm.        

FACTS

 

            Shortly after midnight on August 14, 2002, appellant Steven Schlink was involved in a single-vehicle accident.  A short time after the accident, Otter Tail County Sheriff's Deputy James Stewart was called to the scene.  Because the accident occurred on a state highway, over which the Minnesota State Highway Patrol has jurisdiction, State Trooper Jeffrey Pinoniemi was dispatched to the accident scene.  Stewart informed Pinoniemi that appellant was the driver of the vehicle.  When Pinoniemi questioned appellant as to how the accident happened, appellant replied that he was the driver and that all he could remember was the vehicle rolling.  As Pinoniemi spoke with appellant, Pinoniemi detected a strong odor of alcohol emitting from appellant.  Appellant submitted to a preliminary breath test (PBT), which registered .168.  Subsequently, appellant was placed under arrest for driving while impaired and was transported to the Perham police station.

            At the police station, Pinoniemi read appellant the motor-vehicle-implied-consent advisory form (ICA).[1]  Specifically, appellant was informed that Minnesota law required him to take a test to determine if he was under the influence of alcohol, that refusal to take the test was a crime, that appellant had the right to consult an attorney prior to making a decision about testing, and that any unreasonable delay or refusal to decide would be considered a test refusal.  Pinoniemi recorded appellant's responses to each portion of the ICA.  After each portion, when asked if he understood what had been read to him, appellant answered, "Yes," or, "I understand."  Additionally, when asked if he understood the entire ICA as explained, appellant answered, "Yes."

Appellant answered, "Yes" when asked if he would like to contact an attorney, and a telephone was made available to him.  Appellant stated that he did not need a telephone book because he had the number of an attorney in his wallet.  After roughly four minutes, appellant stated that he might not have the correct number and decided not to contact an attorney.

            When appellant stated he was through with the telephone, Pinoniemi asked appellant if he would take a breath test.  Appellant said, "No."  At this point, Pinoniemi said,

Do you realize that by refusing that, it is an added crime onto your offense and that you would lose your driver's license for a period of one year, * * * just to advise you of that?

 

To this, appellant replied, "Well, in that case, I will take the test, * * * yes."  Appellant's Intoxilyzer sample showed an alcohol concentration of .25.  Subsequently, appellant's driver's license was revoked for one year.  Appellant sought judicial review, and the district court sustained the revocation of appellant's license.  This appeal follows.

D E C I S I O N

            Appellant alleges that Pinoniemi actively misled appellant and induced him to submit to the Intoxilyzer test.  Whether an officer's statements explaining or advising a person of his rights under the implied-consent law have resulted in a denial of due process is a question of law.  Fehher v. Comm'r of Pub. Safety, 591 N.W.2d 752, 754 (Minn. App. 1999), review denied (Minn. July 28, 1999).  A district court's determination of a due-process challenge is reviewed de novo.  Palme v. Comm'r of Pub. Safety, 541 N.W.2d 340, 344 (Minn. App. 1995), review denied (Minn. Feb. 27, 1996).

            There is no question that "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).  The role of explaining the consequences of taking or refusing a chemical test is reserved for an attorney.  See Minn. Stat. § 169 A. 51, subd. 2(4) (2002); Friedman, 473 N.W.2d at 833 ("An attorney, not a police officer, is the appropriate source of legal advice.").  In determining if appellant's right to due process was violated, this court must determine if Pinoniemi actively misled appellant as to the statutory requirement of testing.  See McDonnell v. Comm'r of Pub. Safety, 473 N.W.2d 848, 854 (Minn. 1991) (appellate courts take notice of whether suspects were actively misled by officers regarding their statutory obligation to undergo testing).  When an officer gives "accurate information for the standard case," the officer has not misled the individual and no due-process violation has occurred.  Fehler, 591 N.W.2d at 754.

            Appellant contends that because the statutory penalties for a first-time refusal of chemical testing are less severe than those for a first-time test result of .20 or more, Pinoniemi's statement was misleading and prejudiced appellant.  While it is true that the severity level of the two offenses is different - one is a misdemeanor and the other is a gross misdemeanor - an officer is not required to advise a person of all possible consequences for all possible situations.  Minn. Stat. §§ 169 A. 03, subds. 3(2), 8, 12, 169 A. 26, subd. 2 (2002); see Catlin v. Comm'r of Pub. Safety, 490 N.W.2d 445, 447 (Minn. App. 1992) ("[F]ailure of the advisory to warn of every possible consequence does not violate fundamental fairness inherent in due process.").        

            Although Pinoniemi may have believed it "possible" that appellant's alcohol concentration was .20 or higher, he had no way of knowing this with any certainty and was not obligated to advise appellant of the possible consequences of testing .20 or more.  See Catlin, 473 N.W.2d 445, 447 (Minn. App. 1992) (stating that officer is not required to inform person of all possible legal consequences of testing or test refusal).  Pinoniemi's statement was an accurate recitation of the statutory penalty for the typical implied-consent refusal.  See Minn. Stat. § 169.52, subd. 3(a) (2002) (upon test refusal, the commissioner shall revoke the person's license for a period of one year).

            A person must be advised that refusal to take a chemical test under the implied-consent law is a crime.  Minn. Stat. § 169 A. 51, subd. 2(2).  Pinoniemi so informed appellant and additionally informed him of the statutory penalty for refusal.  Appellant was not misinformed as to the law nor was he threatened with an offense with which he could not have, in reality, been charged.  See McDonnell, 473 N.W.2d at 855 (person is actively misled when threatened with criminal penalties that could not be imposed).

            Because we conclude that Pinoniemi did not actively mislead appellant, and appellant's due-process rights were not violated, we affirm.

            Affirmed.

[1] This conversation was tape-recorded and submitted to the district court.