Mark Allan Plocher, petitioner, Appellant, vs. Commissioner of Public Safety, Respondent.

Mark Allan Plocher, petitioner, Appellant, vs. Commissioner of Public Safety, Respondent. A05-324, Court of Appeals Unpublished, January 17, 2006.

This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480 A. 08, subd. 3 (2004).

 

STATE OF MINNESOTA

IN COURT OF APPEALS

A05-324

 

Mark Allan Plocher, petitioner,

Appellant,

 

vs.

 

Commissioner of Public Safety,

Respondent.

 

Filed ­­­January 17, 2006

Affirmed

Dietzen, Judge

 

Carver County District Court

File No. CV-03-633

 

Francis J. Eggert, P.O. Box 789, Winsted, MN 55395 (for appellant)

 

Mike Hatch, Attorney General, Sean R. McCarthy, Assistant Attorney General, 1800 Bremer Tower, 445 Minnesota Street, St. Paul, MN 55101 (for respondent)

 

            Considered and decided by Wright, Presiding Judge; Dietzen, Judge; and Crippen, Judge.*

 

U N P U B L I S H E D   O P I N I O N

 

DIETZEN, Judge

 

Appellant challenges the district court order sustaining the revocation of appellant's driver's license under Minn. Stat. §§ 169A.51-.53 (2002), the implied consent law, arguing that: (1) the officer lacked reasonable articulable suspicion to expand the investigation beyond the initial traffic stop; (2) the officer lacked probable cause to arrest appellant and require that he take a breath and chemical test pursuant to the implied consent law; (3) the district court abused its discretion in its evidentiary rulings; and (4) the implied consent advisory is unconstitutionally vague, and violates due process and equal protection.  Because we conclude that the district court properly applied the law and did not abuse its discretion in its evidentiary rulings; and that the implied consent advisory is constitutional, we affirm.

FACTS

During an evening in April 2003, Deputy Glaser stopped appellant Mark Allen Plocher's vehicle because of a nonfunctioning headlight.  As Glaser approached the vehicle, appellant made a number of furtive, quick movements inside the vehicle.  When Glaser asked appellant for identification, appellant immediately began rummaging around the vehicle, which was cluttered with garbage and other items.  Because of the cluttered condition of the vehicle, Glaser could not see what appellant was attempting to reach or conceal.  Glaser repeatedly requested that appellant cease rummaging, but appellant refused and continued reaching throughout the vehicle.  As a result, Glaser became concerned for his safety, and suspected that appellant was attempting to locate a concealed weapon or contraband. 

Glaser then asked appellant if he possessed any weapons or contraband.  Appellant, who was nervous and shaky, indicated that he had thrown a "marijuana roach" out of the vehicle window prior to being stopped by the officer, but later told Glaser that the marijuana roach may be in the vehicle.  As a result, Glaser suspected that appellant possessed marijuana or other contraband.  While speaking with appellant, Glaser detected a faint odor of alcohol on appellant's breath, andnoticed that appellant's eyes were bloodshot and his speech was mumbled and disorderly.  When asked if he had consumed alcohol that evening, appellant answered that he had approximately three beers an hour and a half prior to the stop. 

Because Glaser suspected appellant of driving under the influence of alcohol or controlled substances, he ordered appellant to exit the vehicle.  Appellant refused the request three times and demanded that he be issued a "fix it" citation or be allowed to leave.  Shortly thereafter, another officer arrived to assist Glaser.  Appellant then stated that he had the right to leave, but Glaser responded that he was not free to leave, and that if he left the scene, he would be charged with fleeing a police officer.  Appellant drove off at a high rate of speed, and the officers initiated pursuit.  After traveling a mile, appellant stopped the vehicle.  Subsequently, appellant was arrested.

Glaser then read the implied consent advisory to appellant, including the section stating, "Minnesota law requires you to take a test to determine (a) if you are under the influence of alcohol, and (b) if you are under the influence of hazardous or controlled substances or to determine the presence of a controlled substance listed in schedule I or II, other than marijuana or tetrahydrocannabinols."  Appellant agreed to take an Intoxilyzer breath test, which indicated no alcohol in appellant's breath.  Glaser then sought the opinion of a Drug Recognition Evaluator (DRE), but the DRE's tests were inconclusive as to whether appellant was impaired. 

Glaser then asked appellant to submit to a urine test.  After contacting an attorney, appellant submitted to a urine test four hours after the initial traffic stop.  The urine testing kit was supplied by the Bureau of Criminal Apprehension (BCA) and the urine sample was tested by the BCA.  The urine test was positive for a controlled substance, i.e., cocaine.  

Subsequently, appellant's driver's license was revoked by the Commissioner of Public Safety pursuant to Minn. Stat. § 169A.51-.53 (2002), the implied consent law, because of the positive test for a controlled substance.  Appellant challenged the license revocation in district court. 

At the hearing, three witnesses testified, including Glaser and appellant.  Appellant testified that his nervousness was due to his efforts to hurry home, retrieve his wallet, and return to the grocery store to purchase groceries.  Appellant admitted that he told Glaser that he had thrown a marijuana cigarette from the vehicle window.  He stated that his blood-shot eyes were the result of sheet rocking without goggles during his construction work; that he told the officer that he consumed "a beer and a half about three hours" prior to the stop; and that he fled because he feared that the officers intended to break a window of his vehicle and mace him. 

Appellant also testified that the seal of the urine kit was broken before it was used.  Appellant also attempted to testify regarding a prior "false positive" urine test, but the district court sustained respondent's relevancy objection.  In an offer of proof, appellant offered testimony and a physician's letter indicating that, in 2002, appellant tested positive for cocaine in a urine test while a contemporaneous blood test was negative for cocaine. 

Following trial, the district court sustained the commissioner's revocation of appellant's license.  This appeal follows. 

D E C I S I O N

I.

            Appellant raises four issues on appeal.  First, appellant argues that the deputy officer lacked any reasonable articulable suspicion to expand the initial traffic stop.  Specifically, appellant contends that the officer had no right to go beyond issuing appellant a "fix-it ticket" for the nonfunctioning headlight.  Respondent contends that the officer's observations at the time of the initial stop gave rise to articulable suspicion of criminal activity justifying expanded questioning regarding consumption of alcohol and/or drugs. 

            This court reviews the legality of a limited investigatory stop and questions of reasonable suspicion de novo.  State v. Munson, 594 N.W.2d 128, 135 (Minn. 1999).  Investigative stops are permitted if there is a particularized basis for suspecting criminal activity.  State v. George, 557 N.W.2d 575, 578 (Minn. 1997); see also United States v. Cortez, 449 U.S. 411, 417-18, 101 S. Ct. 690, 695 (1981) (stating that "the detaining officers must have a particularized and objective basis for suspecting the particular person stopped of criminal activity").  The scope and duration of the traffic stop investigation, however, must be limited to the justification for the stop.  State v. Wiegand, 645 N.W.2d 125, 135 (Minn. 2002).  Under the Fourth Amendment of the United States Constitution and article I, section 10 of the Minnesota Constitution, any expansion of the scope or duration of a traffic stop must be justified by a reasonable articulable suspicion of other criminal activity.  State v. Fort, 660 N.W.2d 415, 418-19 (Minn. 2003). 

Initially, an officer's questions should be limited to the purpose of the traffic stop.  Wiegand, 645 N.W.2d at 136.  If the responses or other circumstances give rise to a reasonable articulable suspicion of additional criminal activity within the time necessary to resolve the original purpose of the stop, an officer may broaden his inquiries and satisfy those suspicions.  See id.  Reasonable suspicion is determined from the totality of the circumstances.  State v. Syhavong, 661 N.W.2d 278, 281 (Minn. App. 2003).  Reasonable suspicion requires that the officer "be able to articulate something more than an inchoate and unparticularized suspicion or hunch."  State v. Martinson, 581 N.W.2d 846, 850 (Minn. 1998) (citing United States v. Sokolow, 490 U.S. 1, 7, 109 S. Ct. 1581, 1585 (1989)) (internal quotation omitted).  "[A]n officer may make inferences and deductions that might elude an untrained person" when arriving at a determination of a reasonable suspicion of criminal activity.  State v. Tomaino, 627 N.W.2d 338, 341 (Minn. App. 2001). 

Here, appellant's vehicle was stopped for a nonfunctioning headlight, which is a violation of traffic laws.  See Minn. Stat. § 169.47.  Appellant concedes that there was a particularized reason for suspecting criminal activity and a basis for stopping the vehicle for further investigation of that activity.  Glaser initially asked for appellant's driver's license, which is a justifiable inquiry for a traffic violation.  See Delaware v. Prouse, 440 U.S. 648, 658-59, 99 S. Ct. 1391, 1398-99 (1979).  But appellant, who was shaky and nervous, lacked identification; and began immediately reaching around the vehicle and underneath the seats, and refused to stop after repeated requests.  See Syhavong, 661 N.W.2d at 282 (officer's perception of nervousness may contribute to reasonable suspicion if coupled with other particularized and objective facts).  Because the vehicle was cluttered and disorganized, Glaser was unable to see what appellant was reaching for as he rummaged through the vehicle.  Based on his training and experience, Glaser suspected that appellant was attempting to either locate a weapon, or hide weapons or contraband.  To satisfy his suspicions and safety concerns, Glaser questioned appellant about possession of weapons or contraband.  Appellant's response that he had possessed a "marijuana roach" caused Glaser to question appellant regarding consumption of controlled substances. 

Appellant argues, however, that these circumstances are insufficient to give rise to reasonable articulable suspicion given the Minnesota Supreme Court's recent decision in State v. Burbach, 706 N.W.2d 484 (Minn. 2005).  In Burbach, the supreme court held that an officer's detection of the odor of alcohol coming from an adult passenger and observation of the driver's nervous behavior during an investigatory traffic stop, without additional signs of impairment, is insufficient to establish reasonable articulable suspicion of drug or alcohol possession to permit the expansion of the stop.  Id. at 490-91.  But Burbach is distinguishable because here, unlike Burbach, appellant's nervousness and the odor of alcohol constituted only two of many other observations of impairment, including bloodshot eyes, speech difficulties, an uncooperative attitude, and appellant's admission of alcohol consumption and drug possession prior to the traffic stop.  

Under the totality of the circumstances, Glaser had reasonable articulable suspicion that appellant was in possession of weapons or contraband justifying the expanded duration and scope of the initial traffic stop and the broader inquiries about consumption of illegal substances. 

II.

            Second, appellant argues that Glaser lacked probable cause to believe that he was under the influence of alcohol or a controlled substance to justify placing him under arrest for DWI and requesting a chemical test pursuant to the implied consent law.  Specifically, appellant argues that probable cause requires a DRE's conclusive determination that appellant is under the influence of a controlled substance.  Respondent contends the totality of circumstances, when viewed by a trained police officer, provided probable cause. 

            A determination of probable cause is a mixed question of fact and of law.  Clow v. Comm'r of Pub. Safety, 362 N.W.2d 360, 363 (Minn. App. 1985), review denied (Minn. Apr. 26, 1985).  After the facts are determined, this court must apply the law to determine if probable cause existed.  Id.  This court does not review probable cause determinations de novo, instead, we determine if the police officer "had a substantial basis for concluding that probable cause existed at the time of invoking the implied consent law."  State v. Olson, 342 N.W.2d 638, 641 (Minn. App. 1984).  A reviewing court must consider the totality of the circumstances when determining probable cause.  Eggersgluss v. Comm'r of Pub. Safety, 393 N.W.2d 183, 185 (Minn. 1986). 

A peace officer may lawfully arrest a person for a violation of Minn. Stat. § 169 A. 20 (2002) (driving while impaired) upon probable cause.  Minn. Stat. § 169 A. 40, subd. 1 (2002).  Probable cause to arrest requires something more than mere suspicion and something less than the evidence necessary for a conviction.  State v. Horner, 617 N.W.2d 789, 796 (Minn. 2001).  Probable cause exists when there are sufficient facts "such that under the circumstances a person of ordinary care and prudence would entertain an honest and strong suspicion that a crime has been committed."  Id.  (quotations omitted).

In DWI law, "[a]n officer needs only one objective indication of intoxication to constitute probable cause to believe a person is under the influence."  State v. Kier, 678 N.W.2d 672, 678 (Minn. App. 2004) (citation omitted).  These objective indications include slurred speech, an odor of alcohol, bloodshot or watery eyes, and an uncooperative attitude.  Id. at 678.  Other circumstances that can support probable cause include speeding or an admission that the suspect has been drinking.  Groe v. Comm'r of Pub. Safety, 615 N.W.2d 837, 841 (Minn. App. 2000), review denied (Minn. Sept. 13, 2000) (drinking); State v. Schauer, 501 N.W.2d 673, 675 (Minn. App. 1993) (speeding).

Here, appellant exhibited many indications of intoxication.  Appellant was immediately uncooperative by refusing Glaser's repeated requests that he cease rummaging through the vehicle.  Appellant was nervous, shaky, fidgeting, had blood-shot eyes, and Glaser smelled a faint odor of alcohol on appellant's breath.  Finally, appellant fled the scene at a high rate of speed despite being informed by the officer that he was not free to leave.  Appellant's argument that probable cause requires a conclusive determination by a DRE that a suspect is impaired is unsupported by case law.  Only one objective indication of intoxication is necessary to constitute probable cause to believe a person is under the influence, and probable cause is not required to be supported by an expert opinion.  See Kier, 678 N.W.2d at 678 (one indication); State v. Hegstrom, 543 N.W.2d 698, 701 (Minn. App. 1996) (expert testimony), review denied (Minn. Apr. 16, 1996). 

Appellant further argues that he had innocent explanations for the officer's observations.  But "[t]he fact that there may have been an innocent explanation for [appellant's] conduct does not demonstrate that the officers could not reasonably believe that appellant had committed a crime."  State v. Hawkins, 622 N.W.2d 576, 580 (Minn. App. 2001) (observing that an inquiry into whether there is "some hypothesis of innocence" is appropriate to challenge the beyond a reasonable doubt standard, but not the probable cause standard ).   

Under the circumstances, the officer's observations of indicia of intoxication were sufficient to establish probable cause to justify placing appellant under arrest for DWI and requesting breath and chemical tests pursuant to the implied consent law.

III.

            Next, appellant argues that the district court abused its discretion in two evidentiary rulings regarding chemical test results.  Absent an erroneous interpretation of the law, the question of whether to admit or exclude evidence lies within the discretion of the trial court.  Kroning v. State Farm Auto. Ins. Co., 567 N.W.2d 42, 45-46 (Minn. 1997). 

            A.        Admission of Urine Test Results

            First, appellant argues that the district court abused its discretion in admitting the results of the urine test because the test was unreliable in two ways: (1) it was taken more than two hours after the traffic stop; and (2) the seal of the test kit was broken when first observed by appellant.  Respondent contends that appellant failed to rebut the Commissioner's prima facie case of a reliable chemical test. 

            The party offering the results of a chemical test into evidence has the burden of establishing a prima facie case that the test is reliable.  Genung v. Comm'r of Pub. Safety, 589 N.W.2d 311, 313 (Minn. App. 1999).  "The burden of production then shifts to the party opposing admission to show why the test is untrustworthy."  Id. at 313.  In order to show that the test results are untrustworthy, a person must provide more than speculation. Roettger v. Comm'r of Pub. Safety, 633 N.W.2d 70, 74 (Minn. App. 2001).

            Here, Glaser administered a chemical test using a sealed BCA urine collection kit, which provides "a sufficient indicium of reliability to establish the prima facie admissibility of the test results."  State v. Dille, 258 N.W.2d 565, 568 (Minn. 1977).  But appellant failed to produce any evidence to show how or why the test is untrustworthy; instead, merely speculating that the urine test was contaminated because it was taken more than two hours after the traffic stop and the officer did not break the seal in appellant's presence.  See Bielejeski v. Comm'r of Pub. Safety, 351 N.W.2d 664, 666 (Minn. App. 1984) (upholding use of test results as valid where driver presented no evidence and only offered "an invitation to speculation" that results were unreliable).  Furthermore, arguments regarding possible contamination or other irregularity go to the weight of the evidence and not its admissibility.  State v. Palmer, 391 N.W.2d 857, 860 (Minn. App. 1986) (citation and emphasis omitted).  Finally, appellant's assertions are contrary to settled case law.  See Rohlik v. Comm'r of Pub. Safety, 400 N.W.2d 791, 793 (Minn. App. 1987) (chemical tests need not be taken within two hours of the time of driving for implied consent purposes), review denied (Minn. Apr. 17, 1987). 

            Because respondent established a prima facie case of admissibility regarding the test results, and appellant failed to meet his burden of production, the district court did not abuse its discretion in admitting the test results. 

            B.        Exclusion of "False Positive" Urine Test Results From 2002

            Appellant also argues that the district court abused its discretion by excluding appellant's proposed evidence concerning a previous "false positive" drug test.  Appellant contends that this evidence is relevant to demonstrate that his body is capable of producing a "false positive" when tested for controlled substances using urine.  Respondent contends that the district court was correct in refusing to admit the evidence based on irrelevancy. 

            Relevant evidence is evidence that has any tendency to make the existence of any fact of consequence to the determination of the action more probable or less probable than it would be without the evidence.  Minn. R. Evid. 401.  "Evidence is relevant when it ‘logically or reasonably tends to prove or disprove a material fact in issue, or tends to make such a fact more or less probable, or affords a basis for or supports a reasonable inference or presumption regarding the existence of a material fact.'"  State v. Walen, 563 N.W.2d 742, 749 (Minn. 1997). 

            Here, appellant sought to introduce evidence that in July 2002, he tested positive on a urine test for cocaine while an accompanying blood test administered by a physician was negative for cocaine.  This evidence makes the reliability of the 2002 urine test less probable; but it fails to speak to the reliability of the 2003 urine test results.  Evidence of a prior "false positive" result creates the possibility of a similar false positive in this case, which is insufficient to defeat the prima facie reliability of the urine test results.  In short, appellant has failed to produce any credible evidence that challenges the methodology or reliability of the test results that require exclusions of the evidence.  Consequently, the district court did not abuse its discretion in admitting the results of the urine test.  

IV.

            Fourth, appellant argues that the language in the implied consent advisory referring to "schedule I or II controlled substances" is unconstitutionally vague, and violates due process and equal protection.  Respondent contends that appellant waived his constitutional claims by failing to adequately develop these arguments. 

This court reviews a constitutional challenge to a statute de novo.  In re Kindschy, 634 N.W.2d 723, 729 (Minn. App. 2001), review denied (Minn. Dec. 19, 2001).  One who challenges the constitutionality of a statute must overcome every presumption in favor of its constitutionality.  State v. Burns, 524 N.W.2d 516, 519 (Minn. App. 1994) (citations omitted), review denied (Minn. Jan. 13, 1995); see also Minn. Stat. § 645.17(3) (2002) (stating that courts are to presume that the legislature did not intend to violate the Minnesota or United States Constitutions). 

This court declines to reach issues in absence of adequate briefing.  State v. Dep't of Labor & Indus. v. Wintz Parcel Drivers, Inc., 558 N.W.2d 480, 480 (Minn. 1997) (order op.).  This court also declines to address allegations unsupported by legal analysis or citation.  Ganguli v. Univ. of Minnesota, 512 N.W.2d 918, 919 n.1 (Minn. App. 1994). 

Here, appellant bases his constitutional arguments on the following portion of the Implied Consent Advisory:  "Minnesota law requires you to take a test to determine: if you are under the influence of hazardous or controlled substances or to determine the presence of a controlled substance listed in schedule I or II, other than marijuana or tetrahydrocannabinols." 

Appellant's only argument is that, because the "average citizen" would not be able to describe a schedule I or schedule II controlled substance, the implied consent advisory statute is unconstitutionally vague and violates due process and equal protection.  But appellant's brief contains no citation or legal analysis, failing to address even the basic elements of vagueness, due process, or equal protection challenges.  See Lundberg v. Jeep Corp., 582 N.W.2d 268, 271 (Minn. App. 1998) (when fundamental right or suspect class not involved, challenging party must show persons involved are similarly situated and no rational basis for statute that creates disparate treatment); City of Mankato v. Fetchenhier, 363 N.W.2d 76, 78 (Minn. App. 1985) (vagueness challenge addresses whether ordinary people can understand what conduct is prohibited and in a manner that does not encourage arbitrary and discriminatory enforcement); In re O'Keefe, 354 N.W.2d 531, 534 (Minn. App. 1984) (to prevail on due process claim, appellant must show a protected right which was impaired by statute).  Because appellant did not adequately brief his constitutional arguments, this court need not address them.

Further, appellant's arguments fail as a matter of law.  A void-for-vagueness challenge requires that appellant demonstrate that the statute lacked specificity as to his own behavior rather than some hypothetical situation involving an "average citizen."  Ruzic v. Comm'r of Pub. Safety, 455 N.W.2d 89, 92 (Minn. App. 1990), review denied (Minn. May 8, 1990).  Appellant has failed to show how he was confused about whether cocaine is a controlled substance under the statute.  Clearly it is, and appellant did not argue to the contrary.  And appellant's equal protection argument is wholly without merit because appellant was treated in the same manner and read the same implied consent advisory as any other driver suspected of impairment.  Finally, the Minnesota Supreme Court has upheld the constitutionality of the Implied Consent Law against due process challenges in three decisions.  Fedziuk v. Comm'r of Pub. Safety, 696 N.W.2d 340, 342 (Minn. 2005) (citing Heddan v. Dirkswager, 336 N.W.2d 54 (Minn. 1983)); Davis v. Comm'r of Pub. Safety, 517 N.W.2d 901, 904 (Minn. 1994); Hamilton v. Comm'r of Pub. Safety, 600 N.W.2d 720, 724 (Minn. 1999)).[1] 

Affirmed.

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

[1]  In Fedziuk, the Minnesota Supreme Court held that the 2003 amendment to the Implied Consent Law, which removed the requirement for prompt judicial review of a prehearing revocation, violated due process.  But the supreme court severed the 2003 amendment and revived the previous version, which was previously upheld against a due process challenge.