John Joseph Vondrachek, petitioner, Appellant, vs. Commissioner of Public Safety, Respondent.
A17-0462
STATE OF MINNESOTA IN COURT OF APPEALS
Filed December 18, 2017
Rodenberg, Judge
Washington County District Court File No. 82-CV-16-3402
Lori Swanson, Attorney General, Maria N. Zaloker, Assistant Attorney General, St. Paul, Minnesota (for respondent)
Considered and decided by Florey, Presiding Judge; Rodenberg, Judge; and Kirk, Judge.
S Y L L A B U S
A driver’s Fourth Amendment rights are not violated when a police officer, acting on reasonable suspicion of impaired driving, asks the driver of a lawfully stopped motor vehicle to exit and perform roadside field sobriety tests.
O P I N I O N
RODENBERG, Judge
Appellant John Joseph Vondrachek appeals from the district court’s order sustaining the revocation of his driver’s license under
FACTS
On July 24, 2016, at approximately 2:00 a.m., Officer John Miller of the Bayport Police Department was on patrol and stopped a car that was traveling 61 miles per hour in a posted 40-miles-per-hour speed zone. Officer Miller approached the car and spoke to the driver through the car window. He identified the driver as appellant from his driver’s license. While speaking with appellant, Officer Miller “detected a strong odor of alcohol” on appellant’s breath. When asked, appellant said that he had two alcoholic drinks before driving. Suspecting that appellant was driving under the influence of alcohol, but unsure of that, Officer Miller decided to investigate further.
Officer Miller told appellant that he was “just going to have [him] step out real quick to make sure [he was] okay to be driving tonight,” intending to conduct roadside sobriety testing. After appellant got out of his car, Officer Miller had appellant complete the horizontal gaze nystagmus test. During this test, Officer Miller said he “observed lack of smooth pursuit in both right and left eye [a]nd nystagmus at maximum deviation at both left and right eye.” These observations indicated that appellant was impaired by alcohol. Next, Officer Miller explained and demonstrated the nine-step walk-and-turn test. Appellant indicated that he understood the test and performed it without signs of impairment. Finally, Officer Miller explained the one-legged-stand test to appellant, who
After appellant finished the roadside sobriety tests, Officer Miller administered a preliminary breath test (PBT) in accordance with
Officer Miller took appellant to the Washington County Jail, arriving just before 2:20 a.m. At 2:22, Officer Miller went to the restroom. He left the restroom at 2:24. Officer Miller then read appellant the implied-consent advisory at 2:30, and appellant agreed to a breath test using the DataMaster DMT-G (DMT). Officer Miller, a certified DMT operator who had attended a three-day training at the Bureau of Criminal
The DMT process began at 2:39. Before appellant provided a breath sample, the DMT performed a diagnostic check, which showed that the machine was operating correctly. Next, the machine ran through an air-blank test, which produced results within acceptable limits. Appellant then provided his first breath sample at 2:42, which showed a result of 0.128. There was another air-blank test, a control sample test, and a third air-blank test, all of which produced results within acceptable limits. Appellant provided a second breath sample at 2:48, which showed a result of 0.122. Finally, the DMT ran another air-blank test, which produced a result within acceptable limits. The DMT printed a final report at 2:49 showing appellant’s alcohol concentration as 0.12. Officer Miller testified that he did not notice anything during the test that suggested that the DMT was not in working order and that he believed the results of the test were accurate.
The district court found that there was sufficient admissible evidence to establish probable cause to arrest appellant and invoke the implied-consent law even before the roadside sobriety tests. The district court went on to hold that, because roadside sobriety
This appeal followed.
ISSUES
I. Are roadside field sobriety tests a search within the meaning of the Fourth Amendment?
II. Did the PBT violate appellant’s Fourth Amendment rights?
III. Did the district court abuse its discretion in admitting the DMT test result?
ANALYSIS
Appellant argues that the roadside sobriety tests and PBT were administered in violation of his constitutional right to be free from unreasonable searches and seizures because they were warrantless, and that the results of those tests must be suppressed. He argues that the remaining evidence was insufficient to support probable cause for his arrest. He also argues that there was insufficient foundation for the DMT to justify admitting the test result in evidence.
I. The district court did not err in concluding that the evidence from the PBT and roadside sobriety tests was obtained in compliance with the Fourth Amendment to the United States Constitution.
Appellant first argues that roadside sobriety tests and PBTs are searches under the Fourth Amendment, and that evidence resulting from those tests is therefore inadmissible absent a warrant or a valid exception to the warrant requirement. He further argues that, absent the evidence resulting from those tests, the remaining evidence fails to establish probable cause to have arrested him. Consequently, he argues that the threshold Fourth Amendment violation compels suppression of all of the evidence obtained after the stop.
In State, Dep’t of Pub. Safety v. Juncewski, 308 N.W.2d 316, 321 (Minn. 1981), the Minnesota Supreme Court held that an officer may request a PBT if the officer possesses “specific and articulable facts” that form a basis to believe that a person has been driving a motor vehicle while impaired. Since Juncewski, we have applied a reasonable-and-articulable-suspicion test in evaluating the propriety of roadside sobriety testing and PBTs. See, e.g., State v. Klamar, 823 N.W.2d 687, 696 (Minn. App. 2012) (determining that the trooper developed reasonable articulable suspicion to perform an initial stop and concluding that two indicia of intoxication reasonably justified roadside sobriety tests and a PBT). We have specifically rejected appellant’s argument that roadside sobriety tests and PBTs must be predicated on probable cause. State v. Vievering, 383 N.W.2d 729, 730 (Minn. App. 1986) (“An officer need not possess probable cause to believe that a DWI violation has occurred in order to administer a preliminary breath test.”), review denied (Minn. May 16, 1986). Juncewski was a statutory-construction case and did not address the constitutional arguments advanced by appellant here.
Appellant contends that Juncewski and its progeny do not survive the United States Supreme Court’s determination that “[i]n those drunk-driving investigations where police officers can reasonably obtain a warrant before a blood sample can be drawn without significantly undermining the efficacy of the search, the Fourth Amendment mandates that they do so.” Missouri v. McNeely, 569 U.S. 141, 152, 133 S. Ct. 1552, 1561 (2013). McNeely arose out of a warrantless, nonconsensual seizure of a blood sample premised solely on the exigency created by the natural dissipation of alcohol. Id. at 148, 133 S. Ct. at 1558. McNeely addressed only a single-factor-exigency exception to the warrant requirement in the context of a warrantless seizure of blood. Id.
A. Roadside field sobriety testing is not a search within the meaning of the Fourth Amendment.
We first consider appellant’s contention that roadside field sobriety tests are searches for Fourth-Amendment purposes.1 Such roadside tests differ in significant ways from what is ordinarily considered a search. Searches generally involve the collection of some physical evidence. See Olmstead v. United States, 277 U.S. 438, 464, 48 S. Ct. 564, 567-68 (1928) (“The amendment itself shows that the search is to be of material things.”). Roadside sobriety tests, on the other hand, are observations of the subject made by a police
The roadside field sobriety tests did not violate appellant’s rights under the Fourth Amendment.
B. The PBT did not violate appellant’s Fourth Amendment rights.
Appellant argues that a PBT is a search entitled to full Fourth Amendment protection, and therefore violates his constitutional rights absent either a warrant or an exception to the warrant requirement. He argues that the evidence obtained through the warrantless PBT should be suppressed and that, after suppression, the remaining evidence is insufficient to constitute probable cause to support his arrest.
The state, relying on pre-McNeely law and one post-McNeely unpublished opinion of this court, argues that the PBT was reasonable and that no warrant was necessary to obtain a sample of appellant’s breath for purposes of the PBT. We agree with the state that there are good policy reasons to question whether the holding in McNeely should apply to a PBT. As the Supreme Court explained in its later Birchfield decision, the Supreme Court has specifically approved of “the general concept of implied-consent laws that impose civil penalties and evidentiary consequences on motorists . . . and nothing we say here should be read to cast doubt on them.” Birchfield v. North Dakota, 136 S. Ct. 2160, 2185 (2016) (citations omitted). And the PBT, which is inadmissible in evidence by statute, is a part of Minnesota’s implied-consent process.
This case does not require that we reach or resolve the issue concerning whether a PBT administered in accordance with
Appellant consented to the PBT, and there is no record evidence to the contrary. He argues that his consent was not voluntary. In considering whether a person’s consent is
The Minnesota Supreme Court identified seven factors in concluding that the defendant in Brooks voluntarily consented to chemical testing. First, the fact that a refusal to submit to a chemical test could be admitted as evidence in a criminal trial for driving under the influence does not necessarily render the consent a result of coercion.2 Id. at 570. Second, the existence of a penalty for refusing testing bears on voluntariness but does not automatically render consent coerced. Id. Third, whether a driver retains the right to refuse to submit to the testing in question is a consideration. Id. at 571. Fourth, an arrest before the claimed consent makes it less likely that consent was voluntary. Id. Fifth, repeated questioning or extended custody make it more likely that the driver’s “will had been overborne and his capacity for self-determination critically impaired.” Id. Sixth, whether a driver had the opportunity to consult with an attorney before agreeing to take a test is a factor influencing whether consent was coerced. Id. Finally, courts consider whether a
Here, two of the Brooks factors might suggest that appellant did not voluntarily consent to the PBT. Appellant did not have the opportunity to consult with an attorney before deciding whether to submit to the PBT,3 and Officer Miller did not tell him that he had the right to refuse to submit to the PBT. But the remaining Brooks factors strongly support the conclusion that appellant voluntarily consented to the PBT. Appellant was detained for only a very brief time before being asked to provide a PBT, he was not formally arrested before he took the PBT, and he was not subjected to extended questioning. While appellant was not told that he had the option of refusing, neither was he told that he was required to submit.
Moreover, and very significantly in our judgment, appellant faced no criminal penalty for refusing to blow into the PBT, and he retained the right to refuse. Brooks held that even when a driver’s consent to testing is obtained after a threat of criminal charges for refusal, that threat does not necessarily render consent involuntary. 838 N.W.2d at 571. And there was no such threat here. The statute governing PBTs,
Officer Miller testified that he made an “offer” that appellant submit to a PBT. The only evidence of record is the officer’s testimony that appellant did “agree to take a PBT.” Appellant was not threatened with any criminal or other penalty should he have opted not to provide a PBT sample. Cf. Birchfield, 136 S. Ct. at 2170-72 (considering statutes that included criminal penalties for refusing a chemical test). Even more definitively than in Brooks, the record here conclusively demonstrates that appellant voluntarily consented to provide a sample of his breath for PBT testing. 838 N.W.2d at 571 (holding that consent was valid when nothing in the record suggested that the defendant’s “will had been overborne”). Having consented to the PBT, appellant cannot complain that the search of his breath was not authorized by a warrant.
Even if appellant had not consented to the PBT, appellant’s breath was subject to seizure incident to arrest based on the record here. In State v. Bernard, 859 N.W.2d 762, 767 (Minn. 2015), the Minnesota Supreme Court held that a warrantless breath test is constitutional under the search-incident-to-arrest exception to the warrant requirement. A search incident to arrest may precede the formal arrest “as long as the fruits of the search are not the basis for the probable cause to arrest and the arrest is contemporaneous with the search.” State v. Varnado, 582 N.W.2d 886, 892 (Minn. 1998). Here, Officer Miller developed probable cause to believe that appellant was driving while impaired before appellant’s PBT, based on appellant’s speeding, the odor of alcohol on his
II. The district court did not abuse its discretion in admitting the DMT result.
Appellant also argues that the district court erred in admitting the DMT result because the lack of a 15-minute observation period renders the test result unreliable.
“Rulings on evidentiary matters rest within the sound discretion of the district court and will not be reversed on appeal absent a clear abuse of discretion.” In re Source Code Evidentiary Hearings, 816 N.W.2d 525, 537 (Minn. 2012). Admissibility of a chemical test result depends upon “prima facie proof of the trustworthiness of the test’s administration.” State v. Dille, 258 N.W.2d 565, 568 (Minn. 1977). “The commissioner must make a prima facie case that the test is reliable and ‘that its administration in the particular instance conformed to the procedure necessary to ensure reliability.’” Kramer v. Comm’r of Pub. Safety, 706 N.W.2d 231, 235 (Minn. App. 2005) (quoting Dille, 258 N.W.2d at 567). “Once reliability is established, the driver must produce evidence suggesting why the test was untrustworthy.” Falaas v. Comm’r of Pub. Safety, 388 N.W.2d 40,
“The commissioner meets his burden by showing that a certified [DMT] operator administered the test and that diagnostic checks showed that the [DMT] machine was in working order and the chemicals used were in proper condition.” Kramer, 706 N.W.2d at 236. While appellant argues that the reference to “chemicals” in the Dille test is outdated since the chemicals used in the Breathalyzer tests are not used in the DMT, the Dille standard has continued to be applied to different breath-testing devices. The commissioner’s burden is still met by showing that a certified DMT operator administered the test and that the diagnostic tests showed the DMT to be in working order. Kramer, 706 N.W.2d at 236. Here, Officer Miller was a properly trained and certified DMT operator. Before appellant provided a breath sample, the DMT performed a diagnostic check to show that it was operating correctly. The DMT also ran air-blank tests before, between, and after appellant’s breath samples. Each of these air-blank tests produced results within acceptable limits. Based on these facts, respondent met its burden by showing that Officer Miller was a certified operator and that the machine was in working order.
“Once a prima facie showing of trustworthy administration has occurred, it is ‘incumbent upon [the driver] to suggest a reason why the [chemical] test was untrustworthy.’” Tate v. Comm’r of Pub. Safety, 356 N.W.2d 766, 768 (Minn. App. 1984) (quoting Dille, 258 N.W.2d at 568). To do this, “the driver must present some evidence beyond mere speculation that questions the trustworthiness” of the report. Kramer, 706
The following timeline is set out in the district court’s findings of fact: Officer Miller brought appellant to the Washington County Jail around 2:20 a.m. Officer Miller went to the restroom at 2:22 and exited the restroom at 2:24. Officer Miller then read appellant the implied-consent advisory at 2:30. The DMT began at 2:39. By our count, based on the district court’s findings, the period of time between when Officer Miller exited the restroom at 2:24 and when the DMT began at 2:39 was 15 minutes. This amounts to compliance with the suggested observation period. And, as discussed above, there is no record evidence that appellant did anything that would have introduced alcohol into his mouth at any point after his arrest at 2:14.
Moreover, we have held that “[a] slight interruption of the observation period or a less than perfect observation does not invalidate the test unless the driver has ingested or regurgitated a substance that affects the results.” Falaas v. Comm’r of Pub. Safety, 388 N.W.2d 40, 42 (Minn. App. 1986). Instead, an imperfect observation period “merely gives the driver an opportunity to challenge the test’s trustworthiness by suggesting why such a failure makes the test results unreliable.” State v. Wickern, 411 N.W.2d 597, 599 (Minn. App. 1987). The driver has the burden of presenting evidence that he ingested or regurgitated a substance that would affect the results. Falaas, 388 N.W.2d at 42. “The argument that something may have occurred during observation to affect the test result is
Admissibility is largely entrusted to the district court. Applying the Dille standard, the district court acted within its discretion in admitting the DMT results.
D E C I S I O N
Roadside field sobriety testing is not a search under the Fourth Amendment, and the district court did not err in admitting evidence from those tests. On this record, the PBT did not violate appellant’s Fourth Amendment rights. Further, the district court acted within its discretion when it admitted the DMT results.
Affirmed.