Chris Lee Burmeister, petitioner, Appellant, vs. Commissioner of Public Safety, Respondent (A03-541), State of Minnesota, Respondent (A03-543).

This opinion will be unpublished and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

A03-541 A03-543

 

Chris Lee Burmeister, petitioner,

Appellant,

 

vs.

 

Commissioner of Public Safety,

Respondent (A03-541),

 

State of Minnesota,

Respondent (A03-543).

 

Filed April 7, 2004

Affirmed Willis, Judge

 

Martin County District Court

File Nos. CX-02-708 & K7-02-651

 

Allen P. Eskens, Paul E. Grabitske, Eskens, Gibson & Behm Law Firm, Chtd., 115 East Hickory Street, Suite 200, P.O. Box 1056, Mankato, MN  56002-1056 (for appellant)

 

Mike Hatch, Attorney General, Sean R. McCarthy, Francis Green III, Assistant Attorneys General, 1800 NCL Tower, 445 Minnesota Street, St. Paul, MN  55101-2134 (for respondent Commissioner of Public Safety)

 

Mike Hatch, Attorney General, 1800 NCL Tower, 445 Minnesota Street, St. Paul, MN  55101-2134; and Terry Viesselman, Martin County Attorney, Michael D. Trushenski, Assistant County Attorney, 923 North State Street, Suite 130, Fairmont, MN  56031 (for respondent State of Minnesota)

 

            Considered and decided by Schumacher, Presiding Judge; Willis, Judge; and Wright, Judge.

U N P U B L I S H E D   O P I N I O N

WILLIS, Judge

 

In these consolidated appeals, appellant challenges the commissioner of public safety's revocation of his driver's license for refusing to submit to alcohol-concentration testing and also appeals from a conviction of refusal to submit to alcohol-concentration testing.  In both appeals, appellant argues that the testing officer was obligated to re-offer to appellant the option of submitting to a blood test after appellant did not provide a urine sample.  Because we find no error, we affirm.

FACTS

            At approximately 1:14 a.m. on August 24, 2002, Martin County Sheriff's Deputy Michael Anderson responded to a report that a pickup truck registered to appellant Chris Lee Burmeister was driving erratically on Interstate 90.  Anderson proceeded to Burmeister's home in rural Martin County.  Upon Anderson's arrival, Burmeister came out of his home and met Anderson in the front yard.  Burmeister admitted that he had been driving earlier that evening.  Anderson noticed that Burmeister appeared to be intoxicated and administered field sobriety tests, which Burmeister failed. Anderson arrested Burmeister for driving while impaired and transported him to the Martin County Law Enforcement Center in Fairmont.

            At approximately 1:53 a.m., Anderson read Burmeister the implied-consent advisory.  After consulting with an attorney, Burmeister agreed to submit to alcohol-concentration testing.  Because the Law Enforcement Center's Breathalyzer was inoperable, Deputy Anderson offered Burmeister the options of a blood test or a urine test.  Burmeister chose the urine test.  When Burmeister had difficulty providing a urine sample, Anderson told him that it would be considered a refusal to submit to the test if he was unable to provide a urine sample within a reasonable time.  But after drinking several glasses of water and attempting to urinate three or four times in approximately 30 minutes, Burmeister still did not provide a sample.  Finally, Burmeister handed the empty collection cup to Anderson and said, "You might as well call it a refusal because I can't do it."  Burmeister at no time told Anderson that Burmeister had a physical condition that prevented him from providing a urine sample.  The commissioner of public safety subsequently revoked Burmeister's driver's license for refusing to submit to alcohol testing and Burmeister was charged with second-degree driving while impaired and refusing to submit to alcohol-concentration testing.

            At the implied-consent hearing in the civil proceeding and at the omnibus hearing in the criminal proceeding, Burmeister argued that his actions did not constitute a refusal to test because Deputy Anderson was obligated to re-offer an alternative test after Burmeister failed to provide a urine sample.  Both courts rejected the argument.  The implied-consent court held that Burmeister had refused to test and sustained the revocation of his driver's license, and the omnibus court held that there was sufficient probable cause to charge Burmeister with refusal to test.  Because we do not have the district court criminal file, we are unaware of the ultimate disposition of the charge of second-degree driving while impaired.  And the state's brief, but not appellant's, suggests that Burmeister pleaded guilty to the charge of refusal to test.  Burmeister appealed from both the driver's-license revocation and the criminal conviction, and this court consolidated the appeals.

D E C I S I O N

Burmeister contends that, under Minnesota law, when a driver has made a good-faith, but unsuccessful, effort to provide a sample required by his chosen alcohol-concentration test, the testing officer is required to offer once again an alternative test before recording a refusal.  Both the implied-consent court and the omnibus court concluded that Burmeister's rights under the implied-consent law were not violated.  Whether the district court correctly applied the law is a legal question reviewed de novo.    In re A.R.M., 611 N.W.2d 43, 47 (Minn. App. 2000).

Minnesota Statutes section 169 A. 51, subdivision 3, provides that an

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 and action may be taken against a person who refuses to take a urine test only if an alternative test was offered.

 

Minn. Stat. § 169 A. 51, subd. 3 (2002).  This court has determined that the statutory requirement of an alternative-test offer is satisfied if a choice between a blood and a urine test is made available at the outset, so "[i]f an officer directs that the test be of blood or urine, a driver has three choices: a blood test, a urine test, or refusing to take a test."  State v. Hagen, 529 N.W.2d 712, 714 (Minn. App. 1995) (quoting Mahanke v. Comm'r of Pub. Safety, 395 N.W.2d 437, 438 (Minn. App. 1986)).[1]  "An election of one of the alternative chemical tests made available to a driver presupposes the driver's ability to supply, within a reasonable time, a sample essential to that test."  State v. Lauseng, 289 Minn. 344, 345, 183 N.W.2d 926, 927 (1971).  Here, Burmeister was given the option of a blood or urine test at the outset, he chose the urine test, and, after being unable to provide a urine sample within a reasonable time, he told Anderson to "call it a refusal." 

In support of the proposition that Minn. Stat. § 169 A. 51, subd. 3, contemplates a renewed offer of an alternative test after a failed good-faith effort to provide a test sample, Burmeister cites Lauseng and an unpublished decision of this court, Cargiuolo v. Comm'r of Pub. Safety, No. C1-89-245, 1989 WL 67862 (Minn. App. June 27, 1989).  

In Lauseng, the driver was given the option of a blood, urine, or breath test, and he chose a urine test.  289 Minn. at 344, 183 N.W.2d at 926.  When he was unable to provide a sample, the testing officer renewed the offer of a blood or breath test, and the driver refused to submit to either.  Id. at 344-45, 183 N.W.2d at 926-27.  The supreme court held that his subsequent refusal of the blood and breath tests constituted a refusal to test under the implied-consent statute.  Id. at 345, 183 N.W.2d at 927.  In dictum, the supreme court stated that the officers "acted properly" when they offered the driver an alternative test "upon [his] apparent inability to produce a urine sample."  Id.  But we do not read Lauseng to require that an alternative test once again be offered.  And since Lauseng was decided, this court has held that once the choice of tests is made, the driver is bound by that choice, and the testing officer is not required to renew the offer of an alternative test if the driver subsequently refuses the test that he chose.  See Franko v. Comm'r of Pub. Safety, 432 N.W.2d 469, 473 (Minn. App. 1988).  Here, Burmeister was bound by his choice of the urine test, which he subsequently refused. 

We find that not only does Cargiuolo lack precedential value but also that it is unpersuasive.  Cargiuolo involved a driver who chose a blood test.  1989 WL 67862, at *1.  Two technicians were unable to draw a blood sample.  Id.  This court affirmed the district court's determination that the testing officer was then obligated to offer an alternative test.  Id.  We conclude that the Cargiuolo court misread the holding in Lauseng,and it ignored Franko, which held that a driver is bound by his initial choice of tests.

We find that Burmeister's actions constituted a refusal to test and that Deputy Anderson was not obligated under the law to renew the offer of an alternative test.

Both the implied-consent court and the omnibus court concluded that Burmeister had not proved that he was physically unable to provide a test sample.  Burmeister contends that the physical-inability concept derives from Minn. R. 7502.0430, subp. 1,[2] and applies only to breath tests.  We agree with Burmeister to the extent that we find no published Minnesota decision that has recognized physical inability in a case involving a driver's failure to provide a blood or urine sample for alcohol-concentration testing.  And we decline to do so here.

Burmeister further argues that if physical inability applies here, the state did not prove that Burmeister was physically able to provide a urine sample.  But in the context of breath tests, physical inability to provide a test sample is an affirmative defense and the burden of proof is on the driver.  Swanke v. Comm'r of Pub. Safety, 385 N.W.2d 403, 406 (Minn. App. 1986).  And we note that the implied-consent court's and omnibus court's findings that Burmeister failed to prove that he was physically unable to provide a urine sample are supported by the records in these cases.  At the implied-consent hearing, Burmeister testified that he was physically able to provide a urine sample on the night in question and that he had no physical condition that prevented him from providing a sample.   At the omnibus hearing, Burmeister offered no evidence that he had a physical inability that prevented him from providing a urine sample.

Because we conclude that Burmeister refused alcohol-concentration testing, the implied-consent court did not err by sustaining the revocation of Burmeister's driving privileges and the omnibus court did not err by concluding that there was probable cause to charge Burmeister with refusing to test.   

Affirmed.

[1] In Hagen, this court interpreted Minn. Stat. § 169.123, subd. 2(c) (1992).  In 2000, Minn. Stat. § 169.123, subd. 2(c), was recodified as Minn. Stat. § 169 A. 51, subd. 3, but the language of the statute remained substantially the same.

 

[2] Rule 7502.0430, subpart 1, provides that failure to provide an adequate sample for a breath test constitutes a refusal "unless the failure is the result of physical inability to provide a sample, in which case a sample of blood or urine must be provided."  Minn. R. 7502.0430, subp. 1 (2001).