Julianne Louise Mossak, 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This opinion will be unpublished and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

A03-1582

 

Julianne Louise Mossak, petitioner,
Appellant,
 
vs.
 
Commissioner of Public Safety,
Respondent.

 

Filed June 1, 2004

Affirmed

Minge, Judge

 

Chisago County District Court

File No. C0-03-1091

 

 

Steven J. Meshbesher, Meshbesher & Associates, P.A., 225 Lumber Exchange Building, 10 South Fifth Street, Minneapolis, MN 55402 (for appellant)

 

Mike Hatch, Attorney General, Joan M. Eichhorst, Assistant Attorney General, 1800 NCL Tower, 445 Minnesota Street, St. Paul, MN 55101-2134 (for respondent)

 

            Considered and decided by Minge, Presiding Judge; Shumaker, Judge; and Crippen, Judge.*

 

U N P U B L I S H E D  O P I N I O N

MINGE, Judge

            Appellant challenges the revocation of her driver's license based on her refusal of testing under the implied consent law.  Because the district court did not err in finding that appellant failed to meet the burden of proof for the affirmative defense of physical inability to perform the breath test, we affirm.

FACTS

            Officer Chad Meyer and Sergeant Ron Butcher of the Chisago County Sheriff's Office were on routine patrol when they spotted a vehicle parked at the entrance of the Boulder Stone Creek Company.  Officer Meyer approached the vehicle and asked appellant Julianne Louise Mossak, who was seated in the driver's seat, what she was doing there.  Appellant responded that she needed to use a restroom and had stopped to use the woods nearby.  Appellant initially told the officers that another person, allegedly named "Bob," was the driver of the vehicle and was in the woods near the scene.  The officers investigated appellant's claim and found no evidence that such a driver existed.[1]  The officers also noted that appellant's car was filled with her personal belongings and it did not appear that another person could have been in the front seat. 

While talking with appellant, Officer Meyer noticed a strong odor of alcohol and asked if she had consumed any alcohol.  Appellant responded that she had consumed one non-alcoholic beer.  Officer Meyer then asked appellant to leave the car and perform various field sobriety tests.  Officer Meyer asked appellant if she had any disabilities or injuries that would prevent her from performing the tests.  Without elaboration, appellant stated that she had multiple sclerosis (MS).  Appellant agreed to take a Preliminary Breath Test, which revealed an alcohol concentration of .137.  Officer Meyer arrested appellant for driving while impaired.

            Once at the Chisago County Jail, Officer Meyer read appellant an implied consent advisory form.  After speaking with her attorney for almost an hour, appellant agreed to take a breath test on the Intoxilyzer.  Prior to taking the test, appellant did not tell the administering officer, Sergeant Butcher, that her MS condition might affect her ability to provide an adequate breath sample.  After twice failing to provide adequate breath samples, appellant requested a blood or urine test, but Sergeant Butcher determined that she had refused testing and he refused to offer any alternative testing.

Appellant's failure to provide two adequate breath samples resulted in the revocation of her driving privileges pursuant to Minn. Stat. § 169 A. 52, subd. 3(a) (2002).  Upon appellant's petition for review, the district court heard testimony from Officer Meyer, Sergeant Butcher, and appellant.  Appellant testified that she had MS and that the condition affected her ability to successfully complete the breath test.  The officers testified to the events at the time of the arrest, including the inconsistencies and deceptive claims in appellant's statements and conduct that led them to believe that appellant was deliberately uncooperative.  Noting that appellant had not offered any expert medical testimony to support her claim that MS affected her ability to take the breath test, the district court found that appellant failed to meet her burden of proving her refusal was based upon reasonable grounds and sustained the revocation.

D E C I S I O N

 

            Whether a person is physically unable to provide a breath sample is a question of fact that will not be reversed unless clearly erroneous.  Burke v. Comm'r of Pub. Safety, 381 N.W.2d 903, 904 (Minn. App. 1986).  Due regard shall be given to the opportunity of the district court to judge the credibility of witnesses.  Minn. R. Civ. P. 52.01.  Failure to provide two adequate breath samples for an Intoxilyzer test constitutes a refusal.  Minn. Stat. § 169 A. 51, subd. 5(c) (2003).  If a person is physically unable to provide breath samples, a blood or urine sample must be provided.  See Minn. R. 7502.0430, subp. 1 (2003); see also Aunan v. Comm'r of Pub. Safety, 361 N.W.2d. 907, 908-909 (Minn. App. 1985).  If an officer finds that a driver who refuses to provide an adequate sample was physically able to do so and the driver's license is revoked for refusal, the driver may challenge the officer's determination at an implied consent hearing.  Belille v. Comm'r of Pub. Safety,411 N.W.2d 589, 591 (Minn. App. 1987), review denied (Minn. Nov. 6, 1987).  The driver has the burden of proving the failure was reasonable because of her physical condition.  See id.  While evidence of a driver's willingness to take an alternative test may lend credibility to the driver's reasonable excuse for refusal, it does not compel a finding that the district court was clearly erroneous in upholding the revocation of driving privileges.  Lewandowski v. Tschida, 396 N.W.2d 711, 714 (Minn. App. 1986).

            Here, the district court found that appellant had failed to meet her burden of showing that her test refusal was reasonable and characterized appellant's testimony as "self-serving."  The commissioner offered evidence that appellant blew shallow breaths, started and stopped blowing, and blew around the mouthpiece during the administration of the Intoxilyzer test.  The only evidence offered by appellant was her own testimony.  Appellant testified that she has been diagnosed as having MS for approximately ten years, that she takes a number of medications for the condition, and that she agreed to take the Intoxilyzer test because she thought she would be physically able to do so.  Appellant stated that after the breath test was completed, she realized she was not able to provide an adequate breath sample because of her MS condition.  Appellant denied deliberately blowing shallow breaths or deliberately blowing around the mouthpiece to invalidate the test. 

            We cannot say that the district court was clearly erroneous in finding that appellant failed to meet her burden of proof.  There is no evidence in the record to support appellant's claim that her medical condition prevented her from providing an adequate breath sample.  Appellant did not offer any medical testimony to corroborate her assertion that her condition affected her ability to complete the test.  Further, the evidence shows that appellant did not inform the administering officer that her MS would prevent her from providing a breath sample.  Finally, while evidence of appellant's willingness to take an alternative test may lend credibility to her assertion of physical inability, it is not determinative.  Seeid., 396 N.W.2d at 714.

            Here, the district court was presented with appellant's unsubstantiated claim that she was physically unable to provide an adequate breath sample, the officer's testimony that she refused the test, and other testimony concerning appellant's inconsistent conduct and statements the night of her arrest.  Ultimately, this case presents a question of credibility, which the district court is in the best position to determine.  See Burke, 381 N.W.2d at 904.   We conclude that there was substantial evidence in the record supporting the district court's findings that appellant failed to meet her burden of proving physical inability and that her test refusal was unreasonable.  Accordingly, we affirm.

            Affirmed.

 

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

[1] Appellant later told the officers that the individual driving the vehicle was actually named "Bob Mitchell," but no such person appeared to testify at trial.