Frank Steven Arone, 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This opinion will be unpublished and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

C2-02-2275

 

Frank Steven Arone, petitioner,
Appellant,
 
vs.
 
Commissioner of Public Safety,
Respondent.

 

Filed July 1, 2003

Affirmed

Stoneburner, Judge

 

Hennepin County District Court

File No. 481386

 

Robert M. Christensen, Robert M. Christensen, P.L.C., Barristers Trust Building, 247 Third Avenue South, Minneapolis, MN 55415 (for appellant)

 

Mike Hatch, Attorney General, Lisa M. Dahlquist, Assistant Attorney General, Suite 500, 525 Park Street, St. Paul, MN 55103 (for respondent)

 

            Considered and decided by Stoneburner, Presiding Judge, Harten, Judge, and Minge, Judge.

U N P U B L I S H E D  O P I N I O N

STONEBURNER, Judge

 

            Appellant challenges the district court's order sustaining the revocation of his driver's license based on test refusal.  Appellant contends that because of a physical aversion to having blood withdrawn he was unable to complete the test and should have been offered a second opportunity to submit to a urine test.  We affirm. 

FACTS

 

On July 14, 2002, Officer Kenneth Beck of the Mound Police Department arrested appellant Frank Steven Arone for suspected driving while impaired.  Officer Beck transported appellant to the police department and read him the Minnesota Implied Consent Advisory.  The officer offered appellant the choice between a blood test and a urine test.  Appellant asked to contact an attorney and was permitted to do so.  Although appellant was confused by the advice he received from the attorney, he told the officer that he would submit to a urine test.  A few minutes later he asked if he could contact another attorney to get a second opinion.  The officer allowed appellant to call another attorney.  The second attorney advised appellant that a blood test is the most accurate test and appellant told the officer he would submit to a blood test.

The officer transported appellant to the Waconia Hospital.  En route to the hospital, appellant told the officer that he does not give blood well.  Once they had arrived at the hospital, while the hospital technician was preparing to draw blood, appellant again told the officer that he is a "hard draw." 

The lab technician on duty has been a laboratory technician for 30 years and has 25 years of experience obtaining blood samples.  She looked at both of appellant's arms before attempting to draw appellant's blood.  When the lab technician did not get a vein immediately, appellant became fidgety, moving in his chair and tapping his foot.  The lab technician asked appellant to remain still but he continued to move.  She removed the needle and reached for appellant's other arm, but he refused to allow her to attempt to obtain a sample from that arm. 

Appellant asked if there was someone else who could attempt to draw his blood.  The lab technician contacted the two emergency room nurses on duty to see if one of them was available to obtain a blood sample, but neither was available.  The officer told appellant that if appellant did not permit the lab technician to take the sample he would be considered to have refused the test.  Appellant did not suggest that he be allowed to take the urine test.  He became hostile and hospital security was contacted to help with his removal from the hospital.  Appellant's driver's license was revoked for refusing to test.

At the implied consent hearing, appellant testified that he has had blood drawn once each year for the past several years, and that although he is a "hard draw, " each time the technician had successfully obtained a sample.  Appellant testified that although he thought the lab technician at the Waconia hospital was competent, he wanted someone else to try to obtain a blood sample from his other arm.  He said he felt he had "given her enough opportunity because she had the needle in my arm and couldn't draw any blood."                   Based on the testimony, the district court found that appellant refused testing and that his refusal was not reasonable.  The court stated, "[t]o allow only one opportunity with one arm is inadequate.  [Appellant], therefore, refused the test."  The district court also found that appellant was offered a choice between a blood and urine test and that the officer was not required to re-offer an alternative test once appellant chose the blood test.  The district court sustained the revocation of appellant's driving privileges for test refusal.  This appeal followed.

D E C I S I O N

 

            In implied consent cases, we will not reverse the district court's findings of fact unless they are clearly erroneous.  Thompson v. Comm'r of Pub. Safety, 567 N.W.2d 280, 281 (Minn. App. 1997), review denied (Minn. Sep. 25, 1997); see also Minn. R. Civ. P. 52.01.  This court will overturn conclusions of law on a showing that the trial court erroneously construed and applied the law to the facts of the case.  Berge v. Comm'r of Pub. Safety¸ 374 N.W.2d 730, 732 (Minn. 1985).  The determination of whether a refusal was reasonable is a question of fact for the trial court.  Lindemann v. Comm'r of Pub. Safety, 404 N.W.2d 909, 912 (Minn. App. 1987).

            Under the implied consent statute

[i]t is an affirmative defense for the petitioner to prove that, at the time of the refusal, the petitioner's refusal to permit the test was based upon reasonable grounds.

 

Minn. Stat. § 169 A. 53, subd. 3(c) (2002).  Appellant argues that the district court's finding that his refusal of the test was not reasonable is clearly erroneous because appellant manifested a physical aversion to the blood test and should have been re-offered an alternative test.   

            Minn. Stat. § 169 A. 51, subd. 3 provides:

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 * * * .

 

            The statutory requirement of an alternative test offer is satisfied so long as the officer makes the choice between blood and urine available at the outset.  See State v. Hagen, 529 N.W.2d 712, 714 (Minn. App. 1995) (holding officer was not required to offer the motorist "yet another alternative test" after a motorist refused choice between blood and urine).  This court has previously held that "[o]nce the choice of tests is made, the driver is bound by that choice, just as a decision not to take the test is final."  Franko v. Comm'r of Pub. Safety, 432 N.W.2d 469, 473 (Minn. App. 1988) (citation omitted).

            Appellant candidly acknowledges that he was initially offered a choice of a blood or urine test and that the case law in Minnesota does not support his assertion that the officer was required to re-offer a urine test after he decided not to submit to the blood test.  Appellant asks this court to establish a new rule that when a person manifests a physical aversion to the chosen test the officer should once again offer an alternative test.  We decline to do so.  Under the circumstance of this case, appellant was bound by his decision to take the blood test. 

A driver has a duty to comply reasonably with the administration of a test, and failure to do so constitutes a refusal.  Fisher v. Comm'r of Pub. Safety, 389 N.W.2d 771, 773 (Minn. App. 1986) (affirming revocation of license for refusal to test where driver would not permit experienced nurse to draw blood from his other arm once she had been unable to draw blood on first attempt).  "The statute does not limit the test to one attempt to collect a specimen from only one arm."  Id. 

Appellant argues that he attempted to comply with the blood test administration despite his aversion to blood testing, and that his ultimate failure to do so was not because of a desire to thwart the police but because of a legitimate physical aversion.  The record in this case demonstrates that, despite appellant's aversion, he has had blood withdrawn successfully.  Appellant's argument that a physical aversion prevented him from completing the blood test is not supported by the record. 

Affirmed.