State of Minnesota, Appellant, vs. Donald Eugene Furlong, Respondent.

State of Minnesota, Appellant, vs. Donald Eugene Furlong, Respondent. A05-2029, Court of Appeals Unpublished, May 16, 2006.

This opinion will be unpublished and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

A05-2029

 

State of Minnesota,

Appellant,

 

vs.

 

Donald Eugene Furlong,

Respondent.

 

Filed May 16, 2006

Reversed and remanded

Collins, Judge*

 

Scott County District Court

File No. 70-2004-16441

 

Mike Hatch, Attorney General, 1800 Bremer Tower, 445 Minnesota Street, St. Paul, MN  55101-2134; and

 

Patrick J. Ciliberto, Scott County Attorney, Todd P. Zettler, Special Assistant County Attorney, Government Center JC340, 200 Fourth Avenue West, Shakopee, MN  55379 (for appellant)

 

James H. Leviton, 216K Marsh Run I, 11900 Wayzata Boulevard, Minneapolis, MN  55305 (for respondent)

 

            Considered and decided by Worke, Presiding Judge; Dietzen, Judge; and Collins, Judge.

U N P U B L I S H E D   O P I N I O N

COLLINS, Judge

 

            In this appeal from a pretrial order dismissing a charge of gross-misdemeanor refusal to submit to chemical testing, the state argues that the district court clearly erred by ruling that the implied-consent advisory is unconstitutional because it fails to provide sufficient notice of the criminal consequences of refusing to submit to chemical testing.  The state argues that due process does not require police to inform a driver of all potential consequences of taking or refusing a test.  We reverse and remand.

FACTS

            On an evening in July 2004, a police officer found respondent Donald Eugene Furlong in his vehicle slumped over the steering wheel and unresponsive at the side of Highway 18 in Shakopee.  The officer roused Furlong and administered a preliminary breath test showing Furlong's blood-alcohol concentration to be .185.

            Furlong was arrested for driving while impaired (DWI) and taken to the Shakopee police station, where the officer read him the standard motor vehicle implied-consent advisory required by Minn. Stat. § 169 A. 51, subd. 2(2) (2002).  Furlong asked to consult with an attorney, and police provided him with a telephone and telephone book.  Furlong used the telephone to speak with his wife for a short time, but he did not contact an attorney.  Furlong was then offered but refused to take an Intoxilyzer 5000 breath test, and he was charged with third- and fourth-degree DWI. 

            Following an omnibus hearing, the district court dismissed the gross-misdemeanor charge of third-degree DWI (refusal to submit to testing) brought under Minn. Stat. § 169 A. 20, subd. 2 (Supp. 2003).  The district court concluded that the implied-consent advisory read to Furlong did not meet the standard required for due process because it did not warn him that the penalty for test refusal could be more severe than for test failure.  The state appealed.

D E C I S I O N

            Furlong contends that the district court's order dismissing the charge of third-degree DWI is not immediately appealable because it will not have a critical impact on the state's ability to prosecute him for the surviving charge of fourth-degree DWI. Furlong also argues that Minnesota's standard implied consent advisory violates due process because it fails to adequately explain the consequences of refusing to submit to chemical testing.

            Both of these issues were squarely addressed in two companion cases decided by this court during the pendency of this case,  State v. Myers, 711 N.W.2d 113 (Minn. App. 2006); and an unpublished opinion, State v. Melde, No. A05-1553, 2006 WL 619099 (Minn. App. Mar. 14, 2006).  As to Furlong's initial contention regarding whether dismissal of a test-refusal charge satisfies the critical-impact requirement for pretrial appeals by the state, the Myers court ruled that the critical-impact requirement had been satisfied, stating, "Dismissal of a charge has a critical impact on the outcome of the trial."  Myers, 711 N.W.2d at 115 ; see State v. Poupard, 471 N.W.2d 686, 689 (Minn. App. 1991) (ruling critical-impact requirement met when one of two charges dismissed).    

            Second, Meyers endorsed the adequacy of the implied consent advisory in the face of a constitutional due process challenge.  Myers, 711 N.W.2d at 119.  In reversing the district court's ruling that the standard implied-consent advisory violated a driver's due-process rights, the Myers court stated that "the implied-consent advisory administered to [the driver] did not actively mislead [the driver] as to his legal obligations or implicitly assure [the driver] that the penalties for test refusal are less serious than the penalties for test failure."  711 N.W.2d at 119.

            Furlong fails to persuade us of any factual or legal basis for distinguishing this case from Myers, and we see no reason not to follow it. 

            Reversed and remanded.

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