Brian Matthew Nash, petitioner, Appellant, vs. Commissioner of Public Safety, Respondent.
A22-1238
STATE OF MINNESOTA IN COURT OF APPEALS
Filed May 1, 2023
Larkin, Judge
Reversed and remanded. Hennepin County District Court, File No. 27-CV-19-19132.
Keith Ellison, Attorney General, Nicholas R. Moen, Assistant Attorney General, St. Paul, Minnesota (for respondent)
Considered and decided by Bjorkman, Presiding Judge; Larkin, Judge; and Frisch, Judge.
SYLLABUS
A search-warrant advisory that deviates from the exact wording in
LARKIN, Judge
Appellant challenges the district court’s order sustaining the revocation of his driving privileges, arguing that revocation was improper because the advisory requirement of
FACTS
Respondent Commissioner of Public Safety revoked the driving privileges of appellant Brian Matthew Nash after he was arrested for driving while impaired and submitted to a blood test pursuant to a search warrant, which revealed the presence of methadone. Nash petitioned the district court for judicial review of the license revocation. The circumstances surrounding the revocation, which were established at an evidentiary hearing, are as follows.
On July 28, 2019, around 1:30 a.m., Trooper Megan Gerhard conducted a traffic stop and identified Nash as the driver. Nash appeared lethargic, his skin was sweaty, he had a “thick tongue” when speaking, and his pupils did not react to light. Gerhard believed that Nash was under the influence, but she was not sure whether the cause was alcohol or a different substance. Gerhard had Nash exit the vehicle and perform a horizontal-gaze nystagmus (HGN) test, which is generally used to test for depressants. Nash also completed a one-leg balance test and a walk-and-turn test. Gerhard thought that all three tests indicated that Nash was under the influence. Gerhard asked Nash if he was on any medications, and Nash replied that he was not.
Gerhard applied for and obtained a search warrant for a blood or urine test. Next, while seated in her squad car with Nash in the back seat, Gerhard told Nash, “I applied for a search warrant for a blood draw, and refusal to take a test is a crime.” Gerhard showed Nash the warrant, but she did not “let him hold it and look through it.”
Nash agreed to submit to a blood test. Nash testified that he “was only offered the blood test” and that when he agreed to take the test, he had not read the search warrant. Nash explained that he “wasn’t super clear on what test [Gerhard] was referring to[]” when she said that refusal to take a test is a crime, but that he agreed to the blood test because he “didn’t want to be accused of another crime, so [he] sort of just complied.” The resulting toxicology report revealed the presence of methadone in Nash’s blood sample. Nash had a prescription for methadone, and he testified that he took his prescribed methadone the day before he was arrested.
Nash asked the district court to rescind the revocation of his driving privileges, arguing that (1) there was no probable cause for his arrest, (2) the trooper failed to provide the search-warrant advisory required under
Nash appeals.
ISSUE
Did the district court err in sustaining the revocation of Nash’s driving privileges?
ANALYSIS
Nash contends that the district court erred by sustaining the revocation of his driving privileges. He raises the following issues: (1) whether the trooper provided the search-warrant advisory required under
Section 171.177, subdivision 1, requires that “[a]t the time a blood or urine test is directed pursuant to a search warrant . . . the person must be informed that refusal to submit to a blood or urine test is a crime.” Nash argues that he is entitled to rescission of his license revocation because the officer did not advise him that refusal to submit to a blood or urine test is a crime and instead merely advised him that she had applied for a search warrant for a blood draw and that refusal to take a test was a crime. See
The purpose of statutory interpretation is to “ascertain and effectuate” the legislature’s intent.
This court has held that the advisory requirement in
In Jensen v. Commissioner of Public Safety, this court considered whether compliance with section 171.177, subdivision 1, is necessary for the commissioner to revoke driving privileges. 932 N.W.2d 844, 846 (Minn. App. 2019). In resolving that issue, this court noted that section 171.177, subdivision 1, is related to Minnesota’s implied-consent law. Id. at 846-47; see
The legislature included [
Minn. Stat. § 171.177, subd. 1 ] to replace the implied-consent statutes covering blood and urine tests after the Minnesota Supreme Court and the United States Supreme Court held that testing of a person’s blood or urine without a warrant is unconstitutional. The procedures in section 171.177 largely mirror those stated in the implied-consent statutes, requiring a warning of criminal consequences at the time a test is directed or requested.
Jensen, 932 N.W.2d at 846-47 (citations omitted). This court explained that “[t]he history of section 171.177 and its obvious relationship to the implied-consent statutes leads us to apply to section 171.177 the caselaw relied on to interpret the related implied-consent statutes.” Id. at 847.
Thus, the Jensen court relied on the supreme court’s implied-consent decision in Tyler v. Commissioner of Public Safety, 368 N.W.2d 275 (Minn. 1985). Id. In Tyler, the
The Jensen court applied the supreme court’s reasoning from Tyler and concluded that the commissioner may not revoke a driver’s license based on blood-test results under section 171.177, subdivision 5, unless the officer directing the test gives the driver the advisory required under subdivision 1 of the statute. 932 N.W.2d at 847. This court held that, because the peace officer in Jensen never warned the driver that refusing to submit to a blood test is a crime, the commissioner could not revoke her license based on her test results. Id. at 848 (reversing and remanding for the district court to rescind the license revocation).
Under Jensen, it is clear that a license revocation cannot be sustained based on the results of a chemical test if the driver was not provided an advisory regarding the criminal consequences of failing to submit to a test. Id. at 846 (stating it was undisputed that law enforcement did not advise Jensen that refusal to submit to a blood test is a crime). But, as the commissioner notes, Jensen does not address the issue presented here: whether an
The commissioner argues that “there is no specific form the advisory must take,” and that Nash “was accurately informed of the legal consequences of refusing to submit to the blood test that was requested.” The commissioner relies on McCormick v. Commissioner of Public Safety, in which this court announced the rule that whether an implied-consent advisory complies with statutory requirements “depends on whether the given advisory, considered in its context as a whole, is misleading or confusing.” 945 N.W.2d 55, 60 (Minn. App. 2020). The statute at issue in McCormick required that “[a]t the time a breath test is requested, the person must be informed . . . that refusal to submit to a breath test is a crime.”
McCormick argued that the statute required officers to read its language verbatim and that the officer’s failure to state “breath” directly before “test” misstated the law. Id. at 58. This court rejected that argument, noting that the plain language of the statute did not require officers to “read” or “recite” the statute’s language verbatim. Id. at 59. This court also noted that it had upheld advisories that deviated from the language of the implied-consent statute “so long as the information the officer provide[d] [was] not misleading or confusing.” Id. This court reasoned that, because the officer informed McCormick that “this is the breath test advisory” and that “refusal to take a test is a crime,” without mentioning any other test and offering only a breath test, the context of the advisory
The McCormick rule is consistent with an earlier decision of this court in which it said that “[u]niformity in giving the implied consent advisory is highly encouraged” and recommended “that police officers read the exact words of the statute in order to avoid any possibility of confusion or improper deviation from the statute.” Hallock v. Comm’r of Pub. Safety, 372 N.W.2d 82, 83 (Minn. App. 1985). But this court also stated that if an officer deviates from the exact words of a statutory advisory, a revocation may nonetheless be based on that advisory so long as the advisory was not “an incorrect statement of the Minnesota law, or so confusing as to render the advisory illegal.” Id. (affirming district court’s order sustaining a driver’s license revocation).
We agree with the commissioner that the McCormick rule applies here. But for the reasons that follow, we disagree that the advisory in this case was adequate under that rule. See Jensen, 932 N.W.2d at 847 (applying to section 171.177 caselaw relied on to interpret the related implied-consent statutes).
The peace officer who directs a test pursuant to a search warrant shall direct a blood or urine test as provided in the warrant. If the warrant authorizes either a blood or urine test, the officer may direct whether the test is of blood or urine. If the person to whom the test is directed objects to the test, the officer shall offer the person an alternative test of either blood or urine. Action may be taken against a person who refuses to take a blood test only if a urine test was offered and action may be taken against a person who refuses to take a urine test only if a blood test was offered.
“A driver is given the option of an alternative when offered either a blood or urine test because a person may have a reasonable aversion to giving a blood or urine sample.” State v. Hagen, 529 N.W.2d 712, 714 (Minn. App. 1995).2 If the driver refuses an officer’s direction to take one test, the officer then needs to offer an alternative test. Id.; see
In this case, the trooper told Nash, “I applied for a search warrant for a blood draw, and refusal to take a test is a crime.” As the commissioner concedes, if Nash had refused the blood test, the circumstances would not have supported a test-refusal charge because the trooper did not offer him a urine test. See
In sum, the advisory informed Nash that he could be charged with a crime if he refused the blood test, even though the trooper had not offered Nash an alternative urine test. That was an inaccurate statement of law and misleading. The advisory therefore cannot serve as the basis for revocation of Nash’s driving privileges, and the revocation cannot be sustained. See Tyler, 368 N.W.2d at 280 (“Compliance with the procedures of the implied consent law is a prerequisite to revocation pursuant to the implied consent law.”); Jensen, 932 N.W.2d at 847 (applying to section 171.177 caselaw relied on to interpret the related implied-consent statutes).
DECISION
When considering application of
Reversed and remanded.