McDonnell v. Commissioner of Public Safety

McDONNELL, Kay Lisa

Petitioner, Respondent,

v. OF PUBLIC

COMMISSIONER

SAFETY, Appellant. MOSER,

Cindy Jean

Petitioner, Respondent,

v. OF PUBLIC

COMMISSIONER

SAFETY, Appellant. WEEDING,

Troy Eugene

Petitioner, Respondent, OF PUBLIC

COMMISSIONER

SAFETY, Appellant. Minnesota, Appellant,

STATE DRIVER, Respondent.

Keith Arnold Minnesota, Appellant,

STATE McCAULEY, Joseph

Michael

Respondent. C7-90-224, C1-90-249, C6-90-53,

Nos. and C0-90-842.

C5-90-478 Appeals of Minnesota.

Court of 2, 1990.

Oct. Nov.

Review Granted

P.A., Bloomington, petitioner, respon- dent, Weeding. Grau, Minneapolis,

Dean S. J. Pa- Robert tient, Paul, respondent St. Driver. III, Humphrey, Atty. Gen., Hubert H. Gen., Kempainen, Atty. Paul R. Asst. Jo- Plumer, seph Gen., Paul, Sp. Atty. Asst. St. Reuter, Chisago County Atty., James T. City, Molenda, Center Michael E. Annette Margarit, Severson, Sheldon, M. Wilcox & P.A., Apple Valley City Attys., Apple Val- ley, appellant for State. Roston, Roston, Segal

David G. & Minne- apolis, respondent, McCauley. for OPINION FOLEY, Judge. appeals pur-

These were combined for poses argument. They present oral con- challenges stitutional to the criminal refus- advisory. al statute and the consent la, 169.123, Minn.Stat. subd. § 2(b) (Supp.1989). The trial courts the individual cases found the statutes un- constitutional, differing grounds on and ei- prosecutions ther dismissed the criminal rescinded the driver’s license revocations. pro- and remand for further We reverse ceedings in each case.

FACTS The facts of each of these individual to the consti- cases are of limited relevance statutory presented. tutional and issues Sheridan, Jeffrey Inver Grove S. is, example, There for no issue as to the respondent McDon- Heights, petitioner, investigative stops, or legality of the nell. compliance officers’ with the statute Gen., III, Atty. Humphrey, H. Hubert advisory. reading We Gen., Kempainen, Atty. Joel Paul R. Asst. only briefly to state the facts describe Albright, E. Jo- Jacquelyn A. Watne and to frame the dis- trial court decisions Gen., Plumer, Sp. Attys. seph Asst. St. cussion which follows. Safety. Paul, appellant Public Com’r of Meshbesher, Leunig, McCauley John J. State Steven J. Ltd., Dunlap, Minne- Birrell &

Meshbesher McCauley stopped Joseph was Michael respondent, Moser. petitioner, apolis, for being driving at allegedly clocked after police report states mph. Dooley, Minneapolis, Steven over Theodore D. having three McCauley had beers. Megarry, admitted Bergeson, Bergeson, Lander & L. did, If she should portable penalties. the officer He refused to take the breath advisory, penalty he re- being potential advised her of the and after read testing. trial court fused to counsel. The failure to do McDon- held that so violated gross misde- McCauley charged rights and found nell’s fifth amendment refusal, DWI, gross meanor misdemeanor confusion to that the new law added more speeding. He misdemeanor DWI advisory. It revocation. rescinded the charge on moved to dismiss the Safety ap- The Commissioner of Public grounds. The trial court constitutional peals. dismiss, holding that granted the motion to the crimi- unconstitutionally refusal statute were nal Safety v. Commissioner Moser con- rejecting McCauley’s other vague, but Moser in stopped Cindy officer Jean An arguments. appeals. The state stitutional swerving he within her vehicle saw observing indicia of the traffic lane. After State v. Driver intoxication, The he arrested her for DWI. allegedly Arnold was Keith Driver implied advisory consent read to Mos- was allegedly fail- stopped speeding. for After by the testified she confused er. She was portable ing sobriety field tests language advisory of the and asked implied Driver read the breath was paragraphs to to re-read certain officer advisory squad car and re- consent approxi- spent and the officer her. Moser take a fused to breath test. advisory, mately discussing 11 minutes counts of charged was with two Driver agreed test. She she to take a after which one count of gross misdemeanor DWI and thought that had she not she was testified He moved to gross misdemeanor refusal. prosecution, criminal she would subject to cause, and probable for lack of dismiss The refused to take test. test charge based to dismiss the refusal moved .13, alcohol and showed an concentration unconstitutionality of the statute. on the pursuant Moser’s license was revoked motion to dismiss The trial court denied the for implied petitioned consent She law. cause, probable granted lack of but for judicial review. charge. The motion to dismiss the Moser, court found that who The trial appeals. state revocations, prior no confused had was language advisory. It held that McDonnell v. Commissioner of advisory consent a mis- implied Safety Public Moser, applied of law statement by an Kay stopped Lisa McDonnell was prevented voluntarily her con- from which driving erratical- observed her officer who senting to the test and rendered the adviso- indicia of intoxi- ly. The officer observed The court rescinded ry ineffective. trial for DWI. cation and arrested McDonnell of Pub- the revocation. Commissioner depart- transported police her He Safety appeals. lic consent ment, read and her the advisory. McDonnell refused submit Weeding v. Commissioner re- her license was testing and driver’s Safety Public petitioned judicial review. She voked. stopped Troy Eugene found An officer Weed- hearing, trial court

After noticing driving. He then advisory after erratic McDonnell understood held, Weeding intoxi- indicia of The court exhibit knowing observed made a refusal. cation, arrested him for DWI. de- however, should have officer advisory read the had a officer termined whether McDonnell understood. Weeding and asked him if he her to the revocation that would “sure,” refused to not, Weeding replied ruled but did criminal refusal If she law. prior license Weeding had a court, a test. no need to advise take trial there was subject her to revocation. her that refusal ty, (Minn.App.1984). revoked 343 N.W.2d Weeding’s driver’s license was petitioned recognized refusing testing, repeatedly and he for The courts have court, in ex- The trial these are remedial statutes that must judicial review. memorandum, Weeding’s ruled that liberally interpreted public tensive in favor of the rights, private sixth amendment fifth amendment interest and interest pro- State, amendment due rights, Dep’t and fourteenth the drivers involved. Pub- Juncewski, equal protection rights were not Safety cess and lic However, (Minn.1981). light it rescinded the revoca- It is in violated. these grounds was a problems principles analyze tion on the that we misleading presented today. of law and be- misstatement the issues fully Weeding inform of his cause it did not challenges Many to the criminal refusal refusing rights consequences corresponding amendment statute and the testing. of Public Safe- The Commissioner have come ty appeals. 169.121, to this court. See Minn.Stat. § 169.123, 2(b). la, subd. subd. order to §

ISSUES expedient address the statutes in an man- ner, is the effect of Minn.Stat. raised 1. What five cases were selected that (Supp.1989) su- challenges Though la on the to the statutes. various interpretation consolidated, orally of a driver’s preme court’s these cases were rights Nyflot argued together, sixth amendment decide them to- fifth and and we Safety, 369 day. v. Commissioner of dismissed, (Minn.),appeal

N.W.2d 512 1027, 586, L.Ed.2d 567 106 S.Ct. 88 U.S. I. (1985)? A. Amendment Sixth language implied con- 2. Is the right The sixth amendment stat- advisory or the criminal refusal sent stage only to a critical counsel attaches misleading vagueness or so ute void for beginning at the prosecution, a criminal license compel rescission of a driver’s judicial proceedings point when formal revocation? Illinois, 682, 406 Kirby v. U.S. commence. advisory either the or the crimi- 3. Does 1882, 689, 1877, 411 32 L.Ed.2d 92 S.Ct. protection? equal violate nal statute (1972). Supreme Court The United States starting point of criminal has identified

ANALYSIS preliminary complaint, proceedings as the Nyflot, In hearing, arraignment. Id. or INTRODUCTION held that the Supreme Court the Minnesota Supreme very The United States Court right counsel does sixth amendment recently spoke on the issue of drunk driv given a driver at the time attach seriously dispute can ing: “No one formal advisory consent because driving problem magnitude of the drunk or not, point, at that judicial proceedings eradicating interest in it.” Mi States’ N.W.2d at 516. begun. Nyflot, 369 —Sitz, Police v. Dep’t. State chigan nothing to does refusal statute criminal 2481, 2485, -, U.S.-, 110 110 S.Ct. charging. stage of formal hasten the (1990). The Minnesota Su 412 L.Ed.2d noted Jus- supreme court Nyflot, also have rec and this court preme Court in United Rehnquist’s tice statement pose a se drivers ognized that “drunken 180, 5, Gouveia, 188 n. U.S. v. 467 States safety of the health and threat to the vere 5, 2292, 81 L.Ed.2d 146 2297 n. 104 S.Ct. v. Dirk Minnesota.” Heddan citizens of interroga- (1984), indicating that custodial 54, (Minn.1983); 63 336 N.W.2d swager, tion 599, (Minn. Muzik, 602 379 N.W.2d State from the usual arguable deviation only this serious response App.1985). right sixth amendment rule that the strict legislature has enacted problem the com- triggered until counsel is not v. Comm’r laws. Szczech Safe- 368 adversary judicial amendment, including right to an proceed- attor-

mencement of ings. ney, privilege are secure the meant against self-incrimination when custodial Nyflot, at The United interrogation occurs. Miranda v. Ari- consistently has Supreme Court fol- States zona, 436, 444, 1602,1612, 384 86 S.Ct. U.S. in later See position decisions. lowed this (1966). The fifth 16 L.Ed.2d 694 amend- Burbine, 412, 431-32, 475 U.S. Moran v. is distinct ment to counsel from the 1146, 1135, (1986) 89 106 410 S.Ct. L.Ed.2d counsel; right to sixth amendment the lat- (no right to counsel when sixth amendment triggered by ter the commencement of attempted uncharged attorney to contact Gouveia, judicial proceedings. adverse undergoing suspect interroga- custodial 5, at 104 S.Ct. at n. 5. Moulton, tion); U.S. 188 n. Maine v. see also 474 U.S. 477, 484, 170, 106 S.Ct. 88 L.Ed.2d 481 privilege The fifth has amendment both (1985) (right attaches after initiation of “compulsion” compo- “testimonial” proceedings). adversary criminal — Muniz, Pennsylvania See nents. A and read driver arrested -, -, charged has neither been (1990). protects L.Ed.2d It nor arraigned. The addition the criminal being compelled testify accused “from sanction for refusal does not make the himself, provide otherwise advisory stage “adversary judicial itself an State with evidence of a testimonial or com- Gouveia, proceeding[ criminal 467 U.S. ].” municative nature.” Schmerber Cali- 104 S.Ct. at 2298. The 757, 761, fornia, 86 S.Ct. advisory previously warned 16 L.Ed.2d 908 possible liability criminal if he protect The fifth does not amendment failed the test. See Minn.Stat. § produce suspect being compelled from 2(b)(3) (1988). The attachment sample, sample blood a blood because choice, to the other re- sanctions 764-65, Id. physical” “real or evidence. fusal, does not make an adver- Nor does at 1832. introduction sarial proceeding. person’s refusal into evidence of a to sub- may interpret A state court its own con- person’s mit to a fifth amend- test violate provision expansively more than stitutional self-incrimination, right against ment be- provision a identical in the Unit- similar or lawfully requests cause when officer a See, e.g., v. State ed States Constitution. test, an act “coerced” refusal is not 379, Hamm, 423 N.W.2d (Minn.1988). 382 Neville, Dakota v. South officer. 459 U.S. However, recog- supreme court has 553, 564, 916, 922, 103 74 L.Ed.2d 748 S.Ct. right nized a to counsel than re- broader quired only un- by the federal constitution In Nyflot, the Minnesota Supreme Court supervisory power court’s supreme der the recognized right held that to counsel in a broader state not under constitution- Miranda does apply not limited Nordstrom, v. See State analysis. al 331 questioning to determine if he of a driver 901, (Minn.1983); Hepfel v. N.W.2d 904-05 test, to a chemical or she will consent be- Bashaw, 342, (Minn.1979). 348 279 N.W.2d suspect a inquiry cause the of whether will This not extend the consti- court will state “interrogation” a test within the take is not beyond counsel right to the bounds tutional Nyflot, 369 of Miranda. meaning N.W.2d supreme recognized by the court. Whitehead, 516; also State at 458 see (Minn.App.1990). N.W.2d Amendment B. Fifth 1. Federal Constitution the issue this aspect One before whether, court, therefore, is because feder

The fifth amendment to the attaches when certain person penalty criminal now provides that: “No al constitution * * * testing, question repeat in offenders refuse compelled any criminal shall be if will ing them take The to determine case a witness himself.” to be compelled interrogation chemical test safeguards under the fifth procedural any “impermissi- protections. If the choice not to be more fifth amendment subject to any produce so, bly coercive than order to must determine whether this court * * * physical evidence backed with the While the Commis- refusal is testimonial. argues contempt.” Deering sanction of criminal Safety that sioner of Public Brown, (9th Cir.1988). 839 F.2d It to counsel not fifth amendment pro- equally important noted as implied consent Ñeville applicable to the civil implied analysis weighted heavily that refusal ceedings, to decide we decline basis, light directly compelled by in state. consent cases on that Instead, suspects of similar is- the state wants to take supreme court’s consideration the test. Nyflot. in Id. at sues fact, penalty a criminal for refusal testing request in the context of a A arguably compels a refusal than the less interrogation; the re- is not DWI arrest penalty present in did. Al- civil Neville law,” “highly regulated by state quest is though imposition pen- of a criminal 2(b), “presented section alty may inherently for refusal create an to all sus- virtually in the same words imposition more coercive situation than Neville, n. 459 U.S. at 564

pects.” behavior, penalty of a civil for the same 15; 369 N.W.2d Nyflot, at 923 n. see compulsion compul- it increases is the police type coercive tech- at 516. The test, breathalyzer sion to submit compel confession and niques used to compulsion refuse, not the and refusal rights protect are against which Miranda is the conduct made criminal the stat- Miranda, request. not involved in the test increasing penalty at- ute. Because 1613; 86 S.Ct. at State upon only reduces the tendant refusal (Minn.1986). Herem, refusal, Neville, 459 likelihood of advisory is only change in the current (allowing use 103 S.Ct. at 920-21 “may” drivers are now told discourages trial choice of of refusal at penalties, which subject them to refusal), Deering’s refusal was even less request not make the manner does “compelled” the refusal in Neville. than more coercive. original). agree We (emphasis at 543 Id. question also arises as to whether reasoning in and hold Deering, “compels” the driv- making refusal a crime attaching penalty does not a criminal themselves because the ers to incriminate request impermissibly coer- the test make requisite revocations drivers with cive. in- by responding to the commit a crime 2. Minnesota Constitution Neville, reasoned that quiry. the Court gives person the choice I, the state 7 of the Minnesota Article section legit- could taking the which the state person shall provides that no Constitution Schmerber, or re- imately compel under any criminal case to be compelled legit- request fusing. Since the test drivers against himself. Several witness imate, legitimate when no less contend that this argued it becomes here the cases option of re- interpret second state constitu offers the the the state court should broadly of li- than the penalties provisions more fusing the attendant tional provisions. of parallel the use of evidence federal constitutional revocation and cense 563, Neville, at 459 U.S. refusal at trial. argues is the The Commissioner at 922. rights under the Minnesota Constitu sue of it, appeal on the Ninth Circuit for the first time In a case before tion were raised prop McDonnell, mak- are not statute and therefore whether Alaska’s in considered Sorenson, testing erly a crime this court. State to submit to before ing refusal 455, (Minn.1989). Issues him- 457 to incriminate 441 N.W.2d “compelled” the driver by the trial court usual in Alas- addressed choice not first recognizing the self. While time on for the first ly in not be decided than will arguably more coercive ka was if involve constitutional appeal, even Supreme Neville, the the court concluded procedure. concerning criminal questions controlling. It found analysis was Court’s 370 Driver, although II. issue raised

In the brief, trial the below and in Driver’s both 1989, legislature In amended constitutional court did not rule on state to submit DWI law to make comprehen- person However, testing gross misdemeanor if the grounds. in order to license revocations. has certain challenges to the stat- sively address 169.121, la, 3(c) (Supp. Minn.Stat. subds. § utes, here. the issue we consider 1989). time, At that it also amended 1973, Supreme Court the Minnesota advisory. that a de- of evidence held that admission provides, part: now in relevant testing violat- fendant refused to submit requested, At the time a test compelled self-in- privilege against ed the person shall informed: the federal fifth pursuant crimination (1) requires that Minnesota law amendment, 1, section 7 of the article person if to take a test to determine Constitution, and Minn.Stat. Minnesota person is under the influence of alcohol * * Andrews, 297 Minn. 169.121. State *; or a controlled substance cert, 863, (1973), 260, 261, 212 864 N.W.2d per- (2) refused, testing if 146, denied, 42 95 419 U.S. S.Ct. may subject penal- to criminal son (1974). Subsequently, L.Ed.2d ties, person’s right to drive will Supreme Court issued its United States period for a minimum of one be revoked * * Neville, holding that evidence of decision *; year protected the fifth amend- refusal is (3) that if a test is taken and the re- Neville, 554,103 ment. person under sults indicate that Supreme has The Minnesota Court the influence of alcohol a controlled Neville as to the interpretation substance, person followed will be provisions. Ny- penalties person’s right the federal constitutional drive be revoked for a minimum ruling in flot, 369 N.W.2d at 516. The * * *; period days of 90 interpretation of the Andrews as to the (4) submitting testing, that after provision was not ex- state constitutional right to consult person has the Willis, State v. overruled. See plicitly attorney and to have additional tests (Minn.1983). 183 n. N.W.2d person’s by someone of the own made privi- our court held the driver’s choosing; and lege against self-incrimination was not vio- (5) person to take a that if the refuses Constitution, the Minnesota lated under into evi- the refusal will be offered that Andrews noting questionable was of person at trial. dence Nyflot. light precedential value 2(b) (Supp.1989) Minn.Stat. § Safety, Friedman v. Public Comm’r of (new emphasized). In the portion (Minn.App.1990), pet. 455 N.W.2d court, the trial consent cases before 1990). (Minn. de- granted rev. July We found that the was so con- courts broadly 7 more interpret cline to section fusing misleading or such a misstate- to the issue the federal constitution as than ment of law that the license revocations Chock presented here as well. See rescinded. The trial court should be Safety, Comm’r McCauley found the statute un- State v. (choosing to follow Su- (Minn.App.1990) vague constitutionally and dismissed federal con- interpretation charging count a refusal. preme Court constitutionality of challenge stitution a motor vehicle is A driver of Whitehead, roadblock); 458 N.W.2d DWI implied to the deemed to have consented (declining interpret state n. 2 at 148 testing procedures. Minn.Stat. consent con- broadly than federal State, more 2(a) constitution 169.123, (Supp.1989); subd. § Wiehle, videotape determining whether Dep’t Safety Public v. 287 stitution of 416, (Minn.1979). The driver advisory was inadmissi- 418 implied of consent N.W.2d testing. Nyflot, refuse may nonetheless ble).

371 169.121, purpose (Supp.1989). at 517. The of the Minn.Stat. subd. la 369 N.W.2d § persuade advisory a driver to The consent informs the advisory is not testing, to let know the but a driver driver refuse consequences Tyler v. of refusal.

serious refused, testing person may if is that the 275, Safety, Public 368 N.W.2d Comm’r penalties, to criminal be of (Minn.1985). We reaffirm here that 280 person’s to drive will revoked be person rights of a consent period year; for a minimum of one must be within the proceedings considered 169.123, 2(b)(2) (Supp. Minn.Stat. subd. § Wiehle, 287 framework reasonableness. 1989). N.W.2d at 419. describing “may” The use of the word supreme required court not offi- The has liability potential of criminal refusal give that which cers to advice other than advisory vague or mis does not render Abe, legislature mandates. v. State Andersen, v. 370 leading. See State 158, (Minn.1980). This N.W.2d 289 160 653, (general (Minn.App.1985) N.W.2d 663 officers read court has recommended that used in a statute are not unconstitu terms to avoid the exact words the statute vagueness greater spec tional due improper or deviation. Hallock confusion impractical). has re ificity is This court Safety, Public 372 N.W.2d v. Comm’r jected process challenge im a due 82, (Minn.App.1985). here The drivers 83 plied because it warned incorrectly that the officers do not contend that his license “will” be revoked driver advisory or themselves read the conducted “may” for a refusal but be revoked for but, any way to the drivers confuse failing taking and a chemical test. v. State instead, challenge language statutory Frank, 313, (Minn.App. 365 N.W.2d itself. 1985). The Frank court noted a number of including legality contingencies, vagueness A. Void for and the outcome of administrative arrest A is void for proceedings, criminal statute judicial review affected vagueness actually if it fails to re whether a license would process require Id. Due does not voked. suffi-

define the criminal offense with given warning possible all a driver be ordinary people cient definiteness that consequences his decision whether prohibit- can understand what conduct Abe, testing. at 160-61 N.W.2d in a manner does not encour- ed and refuse (failure to warn of civil revocation discriminatory enforce- age arbitrary and process). not failure did offend due for test ment. Lawson, advisory informs the The Kolender requires the law him to take 75 L.Ed.2d 903 driver that is told that if he refuses give any warning other test. The driver The state need for a testing his license will revoked itself. See State than the criminal statute year. (Minn. one Minn.Stat. minimum of 697-98 King, 2(b)(2). severity The 1977) know (every person presumed recognized law). legislature a revocation has chosen such mini advisory, when the revocation warning through supreme court give fuller length. Pri half its current reasonable. mum was and we conclude State, Dep’t Safety, deaux provides: criminal refusal statute (1976) 405, 409, 247 N.W.2d Minn. to refuse any person crime It is a mandatory revocation (noting person’s to a chemical test of submit months, refusal, might six be a then breath, blood, under section urine than criminal convic greater burden person’s been if the license has 169.123 tion). years, or past with the five revoked once revoca- consequences of license past ten The civil times or more within two in- advisory is clear that the make it alcohol-related tion years enumerated [for the test. induce the driver to take driving tended offenses]. minimum of this case that any a license of a involved violation of With revocation refusal, plainly process. “not due year is one for refusal harbor,’ conse- of adverse a ‘safe free Abe, 289 N.W.2d at 161. See also State v. Neville, quences.” DeGier, (Minn. 387 N.W.2d 229-30 Comparing one-year the re- S.Ct. at 924. Likewise, App.1986). statutory the lan- 90-day minimum minimum with the fusal guage sufficiently here informs these driv- the civil failing for the revocation law, and process ers of the no due violation weigh heavily in favor of tak- consequences occurred. ing the test. argue The drivers also that it is confus- given information ing The the driver and inaccurate to advised that be “may” subject penalties advisory is “accurate be Abe, being refusing, The their license relevant.” N.W.2d at 161. while informed advisory to drive “will” be for refusal. refusal statute are not revoked argument court addressed unconstitutionally not “en- This a similar vague and do may recognized Frank. The court that it trap” refusing testing. the driver into language. preferable parallel be use B. as re- grounds However, happening because of the Confusion scission revocation contingent event is actual on a number events, this court held the use word cases, In the “may” is accurate due and does not violate that, argue drivers as to those with the Frank, process rights. at 314. 365 N.W.2d revocations, requisite prior advice that testing refused, person “if be advisory charging The not the doc- penalties,” subject to criminal does not suf ument, by but is the statement set out ficiently advise them that it is a crime for legislature generally alert the driver of persons with such to re revocations possible legal consequences, and should be Therefore, testing. they contend the fuse judged a reasonableness standard. See advisory misleading a misstatement Wiehle, To set aside at 419. advisory of law. because of the use of the word “may” place empha- a hyper-technical is to Abe, supreme As noted above in it, rather than construc- sis on the liberal challenge court addressed a to the statuto- contemplated purpose. tion its effectuate rily advisory language. mandated Under Juncewski, 308 N.W.2d at 319. See applicable law, the then the driver was impose only subject upon arresting would advised he could be Some ascertaining officer the burden of whether for refusal. While he could also revocation subject the individual is to the criminal failure revocation for test so, argued, law. If the officer refusal it is separate statutory provision, there under a refusal law should advise driver of the requirement no that he be so advised. was not, warning, and if and read Miranda process required Abe contended due given should men- without given all he be relevant information about tion of the refusal decline to law. We consenting consequences to the test. place upon this additional task officers who The court noted the consent law many other fulfill while at duties to consent, he continuing his established possible the scene of a DWI arrest. by withdrawing prevent could test require does not officers to statute consent: determination, make this and we decline received the information which the [H]e statutory legis- scheme which the enforce required given legislature to be concern- require. Abe, 289 N.W.2d at lature did in- the withdrawal of consent. and relevant. It formation accurate peaceable ap- promoted Finally, also submission we address the plied withdraw his to one to whom the criminal the blood test. Abe did not nothing apply. There is in the statu- does not In Moser Com- consent. statute driver, Safety, tory procedures which were followed missioner of

373 revocations, precludes knowingly, him from injury had no took the test. who voluntarily, intelligently exercising or his did the she not understand She testified statutory choice to her take refuse submission advisory that decision to the and statutorily implied such his consent been different if she had test would have remains continuous. subject she could be to crimi- not believed refusing. The penalties nal Moser State, Dep’t Safety Hauge, of held that because could not be court Moser 727, (Minn.1979). 286 Like- N.W.2d 728 penalties, advisory subject criminal the wise, language where we held the of law, prevented of and was a misstatement sufficient, question no advisory the is consenting testing. voluntarily from her “voluntary” arises as to consent. The trial by language the It found she was confused by court found confused also Moser was language to her and that the the read language advisory, the of the and that the advisory confusing as was so and incorrect language confusing and was both incorrect. to render the ineffective. light the language of our decision that sufficient, is we also hold that the trial Moser We first note that does court is incorrect as a matter law. The raise claims. Moser’s not constitutional required, gave officer Moser the advice as continuing is under deemed subdi discussing her, as the matter with and well 2(a) section and she does vision nothing Abe, required. is 289 more N.W.2d “right” to her any not have withdraw con any does contend at Moser that Nyflot, 369 N.W.2d at 517. The sent. officer, except for conduct of the the read- matter of right “simply to refuse is statutory ing language, mandated the grace” by legislature, unlike bestowed confusion, we none. caused her and find underly to silence constitutional Neville, warnings. 459 Miranda U.S. offender, respect With the first-time 565, 103 at 923. The S.Ct. advisory’s warning on give general drivers notice of intended to consequences of must less be law, be need not and cannot See, strictly e.g., scrutinized. Horn v. as each driver’s individual situa precise Roe, (8th Burns 536 F.2d 254-55 & legislature that the tion. determined Cir.1976) (due process requires less literal lengthy, advisory, already need which providing in a statute no crimi exactitude generally advise that only sanctions). drivers due process nal Procedural penalties “may” license revocations. apply does to driver’s liberally interpret must upon 105, 112, We Love, refusal. 97 U.S. Dixon v. 431 See language (1977). of the statute favor 172 52 L.Ed.2d S.Ct. Juncewski, 308 N.W.2d at public interest. Nonetheless, fully the driver is advised meaning of a statute is 319. “When the by he avoid to the means which doubtful, great weight give should courts it. pass test and revocation: take the placed upon to a construction advice as to relative conse Some additional charged department warning with its administra same given, but the quences is Co., R.A. 276 drivers, tion.” Krumm v. Nadeau all must serve for (Minn.1979). agree We N.W.2d English lan- there are limitations language Commissioner being respect specific both guage applied drivers not advisory as brief, it seems to us manageably law rea subject to the criminal refusal may not although prohibitions sonable. finding on fault satisfy those intent cost, they are out terms that any set find- court’s We next address Moser exercising ordinary ordinary person advisory pre- language of the ing that the sufficiently under- can sense common voluntarily consenting to vented her from with, comply sacrifice without stand and supreme has said that test. The court public interest. physical or mental driver’s where the v. Nat’l Civil Comm’n consump- United Serv. States as a result alcohol condition AFL-CIO, Carriers, Ass’n Letter or treatment injury effects of tion 548, 578-79, equal pro- The sole limitation which the upon legisla- imposes tection clause L.Ed.2d 796 power in the exercise of this is that ture warning specifically informs drivers prescribe must not dif- criminal statutes their they required are to take the test and punishments same ferent “for the acts If licenses revoked if refuse. will be committed under the same circumstances advisory gives first-time offenders by persons in like situations.” testing more to to than incentive submit 215, (citation have, in 245 N.W.2d at 616 they otherwise would that result is Id. omitted). interest, being their own best as well public Supreme interest. As the Court legislature previously taken The has regard has to criminal statutes: stated with steps encourage to take the test. to drivers vagueness is a The root of doctrine subject to a one- Drivers who refuse are rough princi- of fairness. It is not a idea revocation, those who year license while ple designed to into a constitu- convert 90-day fail the test receive a take and practical dilemma the difficulties in tional 169.123, revocation. Minn.Stat. subd. § general drawing criminal statutes both addition, evidence of refusal to take a enough variety take into account a to prose- into evidence in a test is admissible sufficiently specific conduct and 1, human 169.121, under subd. cution Minn.Stat. § warning provide fair that certain kinds 169.121, subd. 2. § prohibited. of conduct are legislature The 1989 wanted to address 104, 110, Kentucky, 407 U.S. 92 Colten v. specific problem repeat offenders 1957, (1972). 1953, 32 L.Ed.2d 584 provide refuse to a test. These indi- who viduals, past may who be aware from well III. experience the effect a test result has on a Weeding v. Commissioner of trial, special problem. jury pose in a DWI rejected the Safety, the trial court Public Hearing No. 851 Before the on S.F. Senate equal argument right that his driver’s (Mar. 29, 1989); Hear- Judiciary Committee protection under the law had been violated. No. 851 Before the House Judi- on S.F. review, The did not file a notice of driver 1989). ciary (Apr. Still Committee A argues the issue in his re but brief. choosing to take a not to force the drivers file a notice of review to spondent must will, Nyflot, test their see adversely by the trial raise an issue decided legislature crim- instead N.W.2d Minn.R.Civ.App.P. 106. Failure to court. requisite refusal for those with the inalized respondent can file a notice of review bar prior license revocations. We number of v. Am. presenting from issues. Arndt prior which can note the license revocations Co., Family Ins. 394 N.W.2d person subject to the refusal cause a to be (Minn.1986). the unusual circum Under law, past years five or two or one cases, we exer stances of these combined gross past years, ten track the more address cise our discretion to nonetheless law, Minn.Stat. misdemeanor DWI the issue. at 794. Id. 169.121, 3(b). The classification subd. § problem reasonably addresses the serious Weeding contends that because take the repeat offenders who refuse to requisite only individuals with the prevent the use of such evidence test and right to license are denied their revocations subsequent trials. The law in their DWI when asked whether to sub remain silent similarly persons not treat situated does is a viola mit to a this classification equal pro- differently, and does not violate equal protection. their tion of rights repeat offenders. tection define legislature discretion to has broad acts, acts select those CONCLUSION significant pose the most which it believes chal- that the constitutional Witt, Minn. We conclude problems. State v. societal lenges consent 211, 215, statute, in of the each the criminal refusal court, imposes upon the already must the statute fail. five cases before McCauley testing. order in State consent Minn.Stat. trial court’s finding 2(a). void power It is within the erroneous, vagueness and the crimi- legislature lay down reasonable condi- gross charge nal misdismeanor privilege driving for the a motor tions Similarly, should have been dismissed. not highways, on vehicle our Driver, not which did the order State v. advisory comes within the umbrella specify specific violation constitutional public By using the of reasonableness. charge, dismissing the criminal must be highways, streets and drivers are The trial order in McDon- reversed. court testing deemed have consented but Safety, nell Commissioner charged knowledge are with the violation, finding a fifth amendment under influence is the law drive in Weeding v. the court order Commission- they prosecuted and can be and/or their finding advisory Safety, er Public revoked if drive un- driver’s licenses law, are misleading and misstatement der the influence. Finally, the court each trial erroneous. philosophy The of our court own toward erred in Moser Commissioner of public safety point- the whole matter of mis- Safety concluding advisory brought edly together in Szczech: leading no revo- as to the driver with public to free from The cations. dangers by posed the unwarranted drink- offi- police sets out what statute ing outweighs any interest drivers far suspected drunk driv- cer must read to the in the continued any individual have 169.123, 2(b). er. Minn.Stat. See § operation unrestricted of motor vehicles. Supreme recent States most United public interest mandates a nonres- This spoke case, Justice Brennan Court give of the statute to application trictive said implied consent and what was issue of legislative to the clear intent effect having law- legal consequences regarding made as effective rem- statute fully stopped a vehicle: possible for the removal of drink- edy as prepared Muniz a read officer] [The high- and from our streets drivers worked, script the test explaining how ways. Implied Pennsylvania’s the nature Szczech, at Juncew 307. See Law, legal consequences and the Consent 319; Mulvihill, ski, N.W.2d at 308 State refuse. should he that would ensue 227 Minn. N.W.2d 815 303 (caselaw restricting application of (1975) * * * carefully her limited [the officer] narrowly law should be implied consent relevant providing Muniz with role to construed). test breathalyzer information about the ques- law. implied consent She DECISION he un- as to whether tioned Muniz dismissing criminal orders The trial court instructions wished her derstood rescinding refusing testing or charges for These limited submit to test. in each of these revocations driver’s license necessarily “at- inquiries were focused remand reversed. We separate cases are police proce- legitimate to” tendant proceedings consistent trial other for 15 Neville, at n. dure, supra, see opinion. this 15], n. and were S.Ct. [103 any calling perceived likely pro- further to be and remanded Reversed incriminating response. ceedings. — at-,

Muniz, omitted). (footnote FORSBERG, CRIPPEN, LANSING, SCHUMACHER, KALITOWSKI, SHORT per- officials Law enforcement GARDEBRING, JJ., concur inquiry begin their their duties formance of majority. by reached knowledge that result the firm LANSING, Judge (concurring specially). sulting an attorney. By adding only a few advisory words the could be made accurate I concur in the result by reached and could improperly coercing avoid first- majority. I separately write on the use of time offenders. for first-time offenders be- analyze cause I differently that issue

may not majority’s want to be bound to the CRIPPEN, Judge (concurring specially). analysis beyond in future cases that extend I concur in the conclusion that we must proceeding. correct reversible error in all five cases agree fatally that the is not being reviewed. holding compelled This if previous inaccurate the driver has a alco by precedents majority stated in the years hol-related violation within five or opinion. only prerogative It is our as an years. two such violations within ten See appellate intermediate court to follow these Minn.Stat. (Supp.1989). subd. la authorities. warning may incomplete in its ad opinions The various expressed now vice to these drivers but it is not incorrect. prompt this court additional comment on Incompleteness previously has been held law the case. not to be a fatal defect. See State v. Frank, my (Minn.App opinion, N.W.2d the result here is shaped — .1985);see Eagan, inescapably by also Duckworth holdings of the United U.S.-, 2875, 2879,106 Supreme 109 S.Ct. L.Ed.2d States in Court Schmerber v. Cal- (1989). 166 ifornia, 757, 384 1826, U.S. 86 S.Ct. 16 (1966), L.Ed.2d Kirby Illinois, 908 406 When advisory given this same to a 682, 1877, 92 S.Ct. 32 L.Ed.2d 411 offender, however, first-time advisory the (1972), Neville, South Dakota v. 459 U.S. wrong. No first-time offender will be 553, 916, (1983) 103 S.Ct. 74 L.Ed.2d 748 penalties to criminal for refusal to —Muniz, and Pennsylvania U.S.-, agree take the I test. majority’s 2638, (1990), 110 S.Ct. 110 L.Ed.2d 528 process assertion that due requirements application of by these decisions the Minne- exacting when, here, are not as as Supreme sota Court in Nyflot v. Commis- first-time offender is not faced with crimi- sioner Public Safety, 369 N.W.2d 512 penalties. nal I also observe that Moser’s (Minn.1985), appeal dismissed, 474 U.S. conceding to take the failing test and then 586,. (1985). S.Ct. 88 L.Ed.2d 567 has a net effect of receiving 90-day a sus- Neville and Nyflot especially are critical pension year. rather than one Although for analysis. our The holdings in these may there be other effects on Moser’s li- wrongfully cases are disregarded pro- in privileges rates, cense or insurance this posals legislative to correct the actions be- deprivation affirmatively present- was not point, reviewed. To demonstrate this ed to the trial court appeal. or raised in the these five observations are added: problem, it, The real emerges see attempts when the state controlling law, to use the test 1. Given the there is no results as evidence plea the merit in the respondent Moser. In- proceeding. by Evidence disputably, obtained Legislature Minnesota has threatening prosecution, a criminal authority give away or to take freedom violated, no criminal law has been violates of a driver to refuse and it has also created rights, constitutional impairments evidence the of that freedom which are should not be admitted a criminal case. remembered, now criticized. It has to be Obtaining way unfairly however, evidence this steps criticism of to impair implicates “tricks” a driver and pro right due legislative is also aimed at a en- protections. cess See South Dakota v. Ne actment. The content of the con- ville, 553, 566, 916, 924, 459 U.S. advisory S.Ct. sent by is not chosen an official or 74 L.Ed.2d 748 agency, by This misinformation an legislature but itself. damaging is all the per 2(b) more because the See Minn.Stat. (Supp. custody prevented 1989). son is in from con- respondent vigorously by act and not in the Id. is the

As asserted words. This Moser, admitting in refusal rule on refusal evidence in a driver’s interest advisory. prosecution, by frustrated the form of the DWI no reason has been Indeed, senseless; advisory it distinguishing seems of re- identified use they many danger drivers of a don’t prosecution refusing warns fusal in a evidence face—the risk of conviction for act a test. Nevertheless, effect of the refusal. this respondents’ 4. The fifth amendment legisla- advisory represents the will of rationale involves still a third obstacle. could, wished, if further They

ture. Following holding in Rhode Island right of refusal. Under restrict Innis, 446 U.S. 100 S.Ct. Schmerber, judicial no basis exists for (1980), 64 L.Ed.2d Neville enlarge of refusal. effort to the statement of court observed that proceeding. Moser is a civil Schmerber choices in an however, further, declaring the law goes interrogation. not a form of Id. at for crimi- governing collection evidence n. 103 S.Ct. 923 n. This 15. nal cases. adopted approach specifically by Supreme Nyflot. Ny- Minnesota Court refused to rec- 2. The court Schmerber N.W.2d at flot, 369 516. rights are im- ognize that fifth amendment a driver to chemical plicated when consents implications 5. The several Schmer Schmerber, 761-65, 86 testing. 384 U.S. at ber and Neville remain undisturbed as court Neville took 1830-33. recently, in an matter of federal law. Most refusing recognize a fifth step, the next by Brennan, opinion authored Justice testing. right to Ne- amendment refuse fifth of these cases amendment rationale — ville, 561-65, 103 S.Ct. at 921- 459 U.S. at Muniz, again. U.S. at was enunciated court, According to the be- Neville -, at 2643-52. The court is not an act cause the choice refuse implied consent found the entire officer, protect- is not police coerced pro realm of fifth amendment outside the against by the self-incrimina- privilege ed tections, except for an extraneous effort no to avoid the tion. Id. We have freedom advising police verbally test officer Neville rationale. at-, sobriety. Id. 110 S.Ct. the driver’s at 2645-49. establishing a crime It is contended that significantly more serious of refusal telling challenge cur- 6. The most allowance of the than the Neville court’s is stat- rent scheme of consent law drinking as evidence of a proof of refusal amendment due ed terms of fourteenth two effects of refusal are offense. These judiciary urgently be process. The should different, germane is not the difference but clarity advisory of an concerned about Regardless to the rationale Neville. resulting of the driver where the conduct refusal, Neville estab- consequence of ad- constitute a crime and where the not coerced act of refusal is lishes that the visory while the driver’s conduct occur option through given the driver police custody in a officer’s the driver is testing. for consent request lawful Important access to counsel. and has no support modifi- public policy considerations further, goes lending also 3. Neville specifically advisory to indi- cation of the act that have viewed the support for courts a criminal cate the refusal constitutes nontestimonial, be- and thus refusal as Nevertheless, legislators are the act. amendment. scope fifth yond existing fourteenth policymakers, 560-61, at 920-21. Id. 459 U.S. gives court no free- law this amendment to declare other- no basis We found dom to interfere. wise. com- issue is almost on this Precedent “I refuse” that the words isIt contended The decision. pletely limited to the Neville prosecu- incriminating testimony-in

are it was not “funda- concluded Neville court a test. The to submit to for a refusal tion of refusal the act refusal, however, mentally unfair” use lies in the significance of of criminal argument evidence fault. Id. at for the that the invites S.Ct. at 923. Neville driver was refusal as a matter of fact. request confronted with a test opinions The several prompt here two determine blood alcohol concentration and additional observations: was told that refusal could lead to the loss know, course, 1. We that the issues driving privileges. warning on loss here involve tension poli- between the vital clear,” thought of license “made it the Su- cy public interests of safety personal Court, preme refusing “that the test was liberty. prerogative it is the While of an not a ‘safe harbor’ free of adverse conse- appellate intermediate court to offer its quences.” Id. at 103 S.Ct. at 924. opinions policy considerations, on these The court reached this conclusion even meaningless exercise seems in the circum- though specifically driver was here; supreme stances courts of this might warned that refusal evidence state and of the nation have deliberated on against prosecution. used him in a DWI controlling these matters and rendered de- us, the cases before the drivers were also Thus, I cisions. make no statement about Making warned about license revocation. liberty rationales that safe, have been defeated appear the harbor of refusal even less by controlling high court decisions. advisory says testing the current that “if Sim- refused, ilarly, I person may join opinion do not to crim- that our penalties.” inal prefer- Minn.Stat. decision here rests on this court’s 2(b)(2) (Supp.1989). public safety ence for interests. respondent One contends that the real- against I also elect stating any opin- present advisory istic effect of the is to ion for identifying sufficient lib- compel refusal because the criminal conse- erty interests under the Minnesota Consti- quences of a failed test are made clear and might tution that contradict federal law on separate because the existence of a crime important these authority issues. Ultimate sufficiently of refusal is not announced. clearly supreme rests with the court of the Thus, respondent implies that the Neville state to declare state constitutional law govern rationale does not the facts sur- conflict Fuller, with federal law. State v. rounding advisory. argu- use of this This (Minn.1985). More- disregards warnings ment of the advis- over, large to a extent the Minnesota Su- Moreover, ory about only spec- refusal. preme already spoken Court has on the meaning ulates as to the question; majority gives in Nyflot no driver, average poses for the and it a mean- arguments heed to the dissent’s on the which is defied the records before addition, state principles. constitutional advisory warnings us. The contains about array pertinent an of ques- constitutional refusal, possible both as to revocation and already supreme tions is before the court in Furthermore, possible penalties. Friedman v. Commissioner Public of imagine any failing it is difficult to driver Safely, (Minn.App.1990), 455 N.W.2d 93 perceive advisory to that the process is a pet. (Minn. 6, granted July 1990). rev. for employed part police as of a effort to ob- Importantly, tain a chemical test. none of WOZNIAK, Judge (concurring Chief in drivers the case before us has of- part/dissenting part). fered evidence that believed the advis- I concur majority with the result as to ory compelled a refusal. Weeding. McDonnell and I concur with significant It is to look with at the care Judge Huspeni’s dissent as to Driver and Moser, position respondent of and her ex- McCauley. respectfully I dissent as to arguments unduly tensive that she was Moser. present misled advisory. Moser which, pleaded specifically advisory Cindy advisory Moser was read com- her, pelled give unduly her to a test and that it as to was an incorrect statement of the frightened regarding consequences majority concurring opinions her law. The suggest of refusal. advisory’s This evidence leaves little room inaccurate state-

379 among formed prejudice judicial did not Moser the end those review ment of the breath test. revocation decision. Minn.Stat. result because she took 6(2) See ignores analysis (Supp.1989); This the unconstitutional Dehn v. Safety, Comm’r Public 394 fundamentally unfair coercion Moser of 272, (Minn.App.1986). N.W.2d 273-74 advisory at the read. suffered time the important Faced Therefore, decision whether respectfully dissent from the testing, submit driver must be majority’s decision to reinstate the revoca- accurately informed. tion of her driver’s license. previously Minnesota courts have exam

I. ined claims that the adviso ry suspected requested drunk driv misleads drivers who are A state force See, South Dakota v. test under testing. to submit consent law. ers Neville, Abe, 916, e.g., 553, 558, (Minn. State v. 289 158 N.W.2d Frank, However, 1980); State v. 920, 74 L.Ed.2d 365 N.W.2d 313 748 legislature given (Minn.App.1985). We have examined Minnesota has drivers also Nyflot v. given consent. claims that information in addition to option refuse 512, Safety, 369 N.W.2d advisory or contained Comm’r Public instead of that of dismissed, See, Connor, e.g., (Minn.1985), appeal misleading. 474 was 386 517 586, 1027, 106 88 L.Ed.2d 567 N.W.2d at 242. (1985); Thornton v. Comm’r Public of claims, addressing types these of we 606, Safety, 384 N.W.2d (Minn.App. 608 have examined whether the information 1986). Although a driver does not have a given was an accurate statement of the testing, refuse a driver can elect “right” to v. law. See Gunderson Comm’r Public of accepts the conse refuse if (Minn.1984); State, 6, Safety, 351 N.W.2d 7 DeGier, v. quences the decision. State Department Early, 310 Safety Public v. (Minn.App.1986). N.W.2d 229 387 State, (1976); 402 Minn. 247 N.W.2d Lauzon, impor- Department Safety Public testing is an Whether submit to (Minn.1974); 302 224 N.W.2d tant decision with civil and criminal conse- Minn. 156 State, Safety v. Department Public Public Connor Comm’r of quences. (Minn.App. Nystrom, Minn. 201 Safety, 386 N.W.2d 299 217 N.W.2d Golinvaux, (Minn.1974); 1986). “the 403 N.W.2d at It is kind of decision which DeGier, Hallock 916; 229; N.W.2d arguably could be the advice counsel Safety, Public Nyflot, 369 N.W.2d v. Comm’r useful." Holtz v. Comm’r of (Minn.App.1985); suspects allowing Instead of DWI access Safety, Public (Minn.App. 340 N.W.2d 363 counsel, legislature the Minnesota has 1983). Underlying these is the decisions prerequi A itself advisor. appointed their that, minimum, infor assumption at a under the site to license revocation given mation a driver must be accurate. with its mandate compliance law Connor, the trial court relied on which read to driver. that an revocation, is a rescinding Moser’s license Safety, Tyler Comm’r of (Minn.1985). fitting prior analysis. our example N.W.2d given her of his her driver claimed information designed to inform a driver require license misleading so as to her obligations implied rights and under fact Id.; despite rescinded Comm’r revocation be Golinvaux law. consent refused, took, the test. 916, she rather than Safety, N.W.2d 919 that Public of Connor, argu- at Her 386 N.W.2d tells the (Minn.App.1987). The under properly before the court ment was he or has a choice between driver that she However, 169.123, 6(2). we testing section subd. de refusing submitting or determining revocation after reinstated the option. of either consequences scribes given in addi- 2(b) her 169.123, the information (Supp. whether subd. Minn.Stat. § of advisory was a misstatement to the 1989). legislature included the tion has. infor- 245. We found the Id. the law. properly in- driver was issue whether the confusing. misleading not or III. mation was Id. at 245-46. quintessence Fundamental fairness is the process of the due clause. While Moser did statute, Thus, implied consent argument process not label her below a due law, proper advice to a our case have made law, challenge consent due necessary proper application of driver process of her claim law the essence of consent law. Raley and the trial court’s decision. See 1(a) 169.121, (Supp. Minn.Stat. subd. § Ohio, 423, 436, 1257, 79 S.Ct. 1989), refuse test- provides it is a crime to 1265, 3 L.Ed.2d 1344 revoked ing if the driver’s license has been process requirement The due of the four- or past years, five two or once within right; teenth amendment is a does not years. past ten Mos- more times within operate solely protect recognized other revoked er’s license had never been before rights. An individual has the to due appeal. giving the incident rise this life, process liberty, of law when loss of not, subject and could not be Moser was property is threatened the state. penalties refusing to test. to criminal for However, certainly misled Mos- the state A State not issue commands to its citizens, sanctions, guise advising Moser about er. In the under criminal lan- of police consequences refusal, guage vague so undefined as af- of subject incorrectly warning told her she could be ford no fair of conduct what * * * penalties. might transgress Inexplic- to criminal them.

ably contradictory commands in statutes have, ordaining penalties criminal II. fashion, judicially same been denied the Minnesota, a driver is deemed to have * * * force of criminal sanctions. Here testing for intoxication under consented simply there were more than commands 2(a) (Supp. Minn.Stat. vague contradictory. or even There was 1989). State, Department Public Safe of misleading. active 416, (Minn. Wiehle, 287 N.W.2d ty v. Raley, 360 79 S.Ct. at 1266 U.S. 1979). (citations omitted). analysis Implied consent does not obviate than found More offensive statutes void correctly advised of whether Moser was being vague so to afford no for as fair Only when she decided to be tested. them, warning of what conduct violates capacity con lacks the to revoke actively misleads implied consent deemed continuous sent is no license the driver with revocation. choice irrelevant. and informed Ville making pre- Safety, 417 Moser was misled into v. Comm’r Public neuve pro- (Minn.App.1988); testing by choice the state’s 306-08 N.W.2d ferred 607-08; Thornton, Douglas vision inaccurate as to 384 N.W.2d at information pro- consequences testing. This Safety, Public v. Comm’r misleading (Minn.App.1986),pet. actively cess time 852-54 rev. first of- 19, 1986). thinking they (Minn. Compare into are June denied fenders penalties testing Safety, Rude v. Comm’r refuse if license long patently Moser’s revo- (Minn.App.1984). As N.W.2d unfair. exists, cation should therefore be overturned. our laws capacity to revoke require that the driver be informed majority appears to have confused given opportunity consequences and entrapment defense Moser’s claim with an doing so. process clause of the raised under the due Compare Hampton fifth amendment. give a driver The state cannot 484, 490, States, 425 refusing ap- United taking or choice of (1976) (govern- consequences 48 L.Ed.2d 113 as to the point advisor itself protected right activity ment must violate a supply refusing, and then misinforma- of entrapment the defendant to establish consequences. of those tion about HUSPENI, (concurring Judge in defense), Rockford, 408 Grayned with 2298-99, 108-09, part/dissenting part). in only asks us Moser L.Ed.2d on which based Minn. whether, of deciding after to inform drivers 169.123, 2(b) (Supp.1989)and Stat. § test, the consequences refusing McDonnell, Moser, which was read to legally permitted provide inaccu- state is Driver, Weeding, McCauley and is confus- rate information. degree and inaccurate to some for all “entrapment” “trap” are and words However, drivers. I conclude it resulted in void-for-vagueness doctrine under the used prejudice McCauley two: and Driv- convicting person a the evil of to describe upon join er. I It is this basis that clearly not unlawful for conduct which was majority reversing in in the decisions Mos- actively represented as the state or which er, McDonnell, Weeding and reinstat- 438, 79 S.Ct. at Raley, 360 U.S. at lawful. ing the license revocation of those drivers. Thus, refusing to sustain a 1266. Moser no There- had revocations. exercising privilege a conviction for fore, to the extent that the indi- available, clearly state had said was “may subject to criminal cated that she to do otherwise Supreme Court stated sanctions” if she refused the it was indefensible to sanction the most “would be however, agree, I inaccurate as to her. by Id. entrapment the State.” sort of Lansing analysis Judge was shorter Although Moser’s revocation to discern analysis extent that is unable refusal, judi- than revocation any prejudice Moser as a re- which befell wrongs inflicted ciary must address taking license sult of the test. Her majority would by her the state. The upon days she took the revoked for because regardless any advisory seemingly affirm test; for one it would have been revoked content. I coercive and inaccurate of its Indeed, prejudice year if she had refused. agree. Admittedly, the state has cannot likely present prosecu- in a very would promoting the use of alco- interest valid of a situation for DWI which arose out tion However, imperative testing. socially hol its evidence where the state obtained constitutionally de- cannot shield a result threatening prosecution which offenders ac- process. First time fective statute, but, could not occur under making this by the state tively misled while observes, prosecution Judge Lansing prejudicially coerced important decision are not us. before standing redress. to seek and must advisory, I Despite my concern with the lax en- promote not This decision does any prejudice to discern also unable am driving laws. It of our drunk forcement Weeding McDonnelland which has befallen fairness the ideal of fundamental affirms of their license revocation in the context constitu- in our state and federal embodied involving only matters proceedings; society keenly has years, In recent tions. Notwithstanding are us. them that before on the seriousness its attention focused confusing nature the flawed passed to driving Laws offenses. drunk in- Weeding were advisory, McDonnell and license revocations convictions and make result refusal to test would formed that fairness not subvert to obtain should easier driving privi- one-year suspension of their not, We must expediency. for the sake exactly appellant That is the result leges. cause, any popular to this service here.1 trial court and seeks sought in the rights trample government allow majority’s respectfully dissent from I justi- The end does citizens. individual and Driver and McCauley reversal fy the means. dismissal of the trial courts’ affirm would charges un- gross misdemeanor J., NORTON, in the dissent joins (Supp. subd. la Minn.Stat. der WOZNIAK, C.J. analysis given the same would, course, prosecu- refusal to test to the subject criminal McCauley in this dissent. Weeding cases of Driver brought McDonnell tions 382 aspects of

1989), grounds the Court declare the relevant on the that would Andrews, 260, v. 297 Minn. 212 State upon 169.123 confused Minn.Stat. based denied, 419 U.S. (1973), cert. N.W.2d 863 prejudiced these two drivers. and 881, 146, (1974), 42 no 95 L.Ed.2d 121 S.Ct. confusing addressing the and Before longer By view Neville. reach viable advisory given of the prejudicial nature long Andrews ing the that is no conclusion however, Driver, McCauley and I would course, good law, accepting, er I am the agreement express my majority with the the Minneso majority’s determination that First, certainly respects. a con- several Supreme to inter ta Court would decline citizenry right duty cerned has the the pret Minnesota Constitution as afford the enact all measures to reduce to reasonable ing greater protection to under an accused carnage pres- results from the the which the fifth than does the United amendment on our roads of drivers who are under ence States Constitution. drugs. I the influence alcohol or believe Neville, legislature reasonably may Under a must be both the enact a refusal that making compelled gross misdemeanor to and testimonial before violates statute it a rights. testing to under im- fifth amendment refuse submit to the individual’s Id., 559, v. at 920. law. See South Dakota plied 459 U.S. at Neville, 553, 565, 103 While I that as here 459 U.S. S.Ct. believe refusal, (1983) (“[The logically compel suspect’s] L.Ed.2d constituted does 74 748 * * * accept analysis I is not right refuse the alcohol the refusal blood test testimonial.2 See Friedman v. Comm’r by simply grace a matter of is bestowed Nyflot Safety, v. Pub. Legislature”); (Minn.App. 455 N.W.2d Dakota 97 the South 1990) being Safety, Pub. (“[Rjefusal to take Comm’r of 369 N.W.2d a test after * * * (Minn.1985) (“The do legislature lawfully requested to so is not an act 517 protected and is not repeal by the officer could law and coerced by privilege in against police direct officers to administer chemical self federal crimination”) (emphasis added), pet. will”). suspect’s tests granted rev. (Minn. July 6, 1990).3 Second, conclude, I re albeit somewhat Further, right accept majority’s position luctantly, no fifth to re I amendment McCauley regarding I con- silent was violated as to the sixth amendment. main Nyflot though good clude Driver. Even the Minnesota still law because Willis, right does not State Court 332 sixth amendment to counsel Supreme (Minn.1983) proceedings apply judicial declined attach until are com- N.W.2d Neville, Nyflot, 369 N.W.2d at 515- menced.4 See Willis I believe it declined because Illinois, (citing Kirby 406 U.S. decided without resort the ratio could be (1972) and Unit- nale of Neville. Faced squarely 32 L.Ed.2d 411 Gouveia, 180, 104 ed States Supreme question, believe the Minnesota course, might appropriately question Arguably, court 4.One whether even Neville holding might beyond is not Nyflot re-examine its "refusal should extend rationale charges presented it were testimonial nature” if charges to test." of DWI to of “refusal cases before this court. the facts Nyflot court observed that Neville, the evidence of refusal was to be recognized to counsel in Miranda charge in a case where the was DWI. admitted Here, apply questioning of a does not limited as evidence of refusal will admitted determine if he will consent driver to involving in cases "nontestimonial in nature" charge right to chemical test. The Miranda counsel Logic of "refusal to take a test.” applies only “interrogation,” which the credulity application under strain somewhat express questioning or defined as Court has fifth “nontestimonial” amendment the Neville reasonably by police or actions suspect’s other words to cases rationale where incriminating response. separate likely evoke an as of a crime but not entered is, itself, evidence added). specific Nyflot, (emphasis act for which being punished. credulity Again, logic strained seem be an that refusal test would not conclusion incriminating response clarity of the refusal and adviso- 3. The amended charged the crime ry was not the Friedman court statute before test." was "refusal to not then effective. amended statute was (em- (other 2(b)(2)-(3) (1984) Minn.Stat. 81 L.Ed.2d added). omitted)). phasis Despite the efforts of the citations interpret language para- majority to majority opinion My departure from the (2) (3) graphs way in to and such a as compelled McCauley and Driver is as to statutory advisory redeem the from the conviction, reading upon firm by my consequences vagueness fatal and con- advisory, that as to these implied consent fusion, I vague submit that it is and con- process rights under the two drivers due fusing regard prosecutions in for refusal fourteenth amendment were violated. 169.121; to test uncon- under Minn.Stat. § “comprehends stan Generally, process due paragraphs stitutionally so. These two de- ac procedure conduct and which dards of offense, scribe and reference not one but principles of fair cord with fundamental However, and to test.” two: DWI “refusal concept justice.” ness essential to the advisory’s language not make this does 112, 120, 114 Wofford, 262 Minn. State v. Hence, clear. the driver is unaware that omitted). (1962) (footnote N.W.2d separate two offenses are involved. Ny- Arguably, consistent with Neville Paragraph 2 addresses the criminal re- duty may under no the state be flot statute and informs the that fusal advisory to a driver in the provide any subject him or her to criminal may refusal here. How of the drivers circumstances warning wrong for some penalties. That ever, unnecessary the state deems it inadequate for For drivers and others. attorney consultation with an be to allow offenders, wrong re- first-time DWI it is deciding to take the test and fore whether garding the refusal statute. First-time instead, when, arrogates to the state itself certainly offenders will most be sub- DWI driver, advising a I submit the burden losing penalty of ject to the administrative fundamental fairness re that the idea of they if refuse to take their drivers’ licenses give advice that is accu quires the state statute, existing the test. Under the how- complete rate, unambiguous, that is that is ever, subject to criminal they cannot be require enough to meet constitutional refusing to test. The adviso- penalties for ments, prejudice. Pri and that avoids See ry clearly contrary inference.5 allows 405, 412, State, 310 Minn. deaux (1976) (in the su dicta N.W.2d phrase “may subject to criminal be may rea that a driver preme court stated warning perilously flawed penalties” is test “where sonably refuse a alcohol blood prior revoca- requisite for drivers with * * * the driver as officer confused subject certainly They most will be tions. analysis of Chief rights”). his See also they if refuse. penalties to criminal free he finds a Judge Wozniak wherein were, fact, charged McCauley Driver information. standing right to accurate When drivers who refusal test. hear that the conse- prior revocations advisory given to a driver statutory may crimi- quence of refusal to test invoke following: includes mo- penalties, and at almost same nal refused, person (2) testing if taking failing the test hear that ment penalties, subject to criminal may be they penalties, in criminal will result will will be person’s to drive prudent the more logically conclude that of one period minimum for a revoked ** it offers an is refusal because alternative *; year escape penalties. criminal opportunity the results (3) if is taken and a test expect or sus- if these drivers Especially the in- person is under that the indicate failed, will be a test pect that a test taken sub- or a controlled of alcohol fluence opt to refuse. will stance, person will constituted advisory as now person’s While penalties criminal refusal to test will the driver that mini- tells for a may revoked right to drive ** driving suspension of one-year *; result days period of 90 mum majority agree that license Moser, prejudice, earlier, before the one case 5. As noted proper. category, find no revocation because I this falls into us that fore, as to test be admitted the driver no indication privileges, gives proceeding, as well as one two in the DWI risk of not but evidence that there is a no indica- There is as a refusal prosecutions. being introduced “evidence” Thus, written, revocations for those with the adviso- prosecution. tion that refusing constitutes very the test act of test compulsion to refuse the ry’s logical Thus, the offense. gross misdemeanor for an of- exposes punishment a driver separate is a that refusal failure to warn have been may not otherwise fense which logical compul- combined with offense is that the refusal committed. The result McCauley clearly prejudiced sion to refuse advisory is entered as evi- by enticed not to test was Their decision and Driver. prosecution for the offense dence in the statutorily inherently unclear on but based advisory supposed to have which the was police officer Where a mandated “advice.” is designed prevent. This result been may person, who required to read to a ironic, inappropriate only but also an not statute, “advisory” an one have violated significant prejudice into introduction of jeopardy of vio- suspect in puts the which subsequent proceedings.6 statute, that situation does lating another pre-amendment cases cited certain While procedure ac- which not involve conduct by majority and concurrences have principles of fair- “fundamental cords with the concerns allegedly addressed some of justice.” concept ness essential to heretofore, challenge prece- I their voiced is, submit, Further, pre- I to test refusal McCauley they refer to dential value avoided, should be cisely the result which advisory used and Driver.7 measure, and to public policy a both as qualitative unique: us is a cases before the clear rationale of conflict with avoid advisory. any previous departure from compulsion to indicates that Neville which present advisory attempts to one stroke the Neville, permissible. test is See take the one, two, and refer to not but describe (“Given, 103 S.Ct. at 922 Frank, 365 N.W.2d offenses. State then, taking a that the offer blood-alco- instance, (Minn.App.1985),for a case clearly legitimate, the action hol test majority concurring which both legitimate when the State no less becomes cite, to turn appropriate it opinions was refusing option a second offers challenge on four- a constitutional back making penalties for the attendant grounds. Id. at 314. amendment teenth choice”) original). Be- (emphasis in that part in to be refusal to test Frank was advisory logically com- present cause the prosecution; in not evidence a DWI refusal, pro- not violates due pels a Id.; to test. prosecution in for refusal a law, constitutionally imper- cess of but Abe, see also State Neville. missible under (Minn.1980). that initiation of a Additionally, I note appel- I do not trivialize task before a require not that prosecution does DWI courts in in the event the trial lants a test. See take and fail breath driver affirmed. When 1(a). McCauley and Driver are There- Minn.Stat. § prosecuted charge in- can be dispute prosecution DWI "refusal to test” that of a Few 6. would no test stead. charge more difficult when is made evidence. While the are available as results arguably Brown, especially rulings Neville Deering in Willis and 839 F.2d that To the extent difficulty, problems present Cir.1988), in (9th pro- all ease a test refusal criminal disappear a test prosecution ceeding, may persuasive, without it is also distin- DWI be misdemeanor) case, (or gross DWI guishable. officer told Deer- misdemeanor In that "[t]he a gross replaced misde- prosecution a test constituted a can be that refusal to take the misdemeanor, prosecution crimi- and further warned "refusal to test” meanor respond, Deering and the his silence penalties as harsh as DWI that if he did not at least nal Deering consequences. remained Ar- a refusal. revocation would be deemed civil license same Deering in advisory com- at 541. The defendant present does not silent." Id. guments unambiguous explicit adviso- given an in view pel must be evaluated pros- ry him that refusal test was informed advantages gained DWI which when the difficult separate offense. bypassed and of itself can be without a test ecution driver, argument possi- suspected drunk hold the queried at oral about administratively revising the im- bility of custody, deny opportunity the driver an constitution- plied to meet attorney, presume consult with an and then unequivocally requirements, appellants al give “advisory” the driver an which revision was not stated that administrative lawyer’s must I substitute for a advice. Therefore, appears revision permitted. precedent rejecting find no legislative require action.8 process obligation a due that the state’s “advisory” nonprejudicial be accurate and statutory will Revision of the Nonetheless, pre- meet a circumstance the state easy task. where be requirements, person driv- constitutional believe sumes to be counselor to a it holds ers, any- they if are to advised about custody. all, should informed that thing Judge pro- Lansing’s analysis of Moser risking proceedings: are two criminal DWI vides, as to all do not drivers who refusal to test. The officer need not convictions, prior wholly satisfactory whether a driver has a revo-

ascertain analysis prejudice. in terms of I concur in However, give officer must cation. portion opinion. that of her enough permit information to a driver to refusing consequence of the test know the convictions, prior the As drivers with does, fact, in if he or she have advisory current is defective in its failure give The officer must also revocation. give adequate warning gross mis- enough permit a driver to information to liability demeanor that results from refusal charge, if is the first DWI know that this That defect in the to take the test. adviso- consequences revocation will be license however, ry prejudicial, only when becomes refused, if a test is but there will be harsh gross refusal, prosecuted. misdemeanor penalties for refusal. Inclusion no criminal Judge Huspeni; I by This is the view taken of this would reme- of information breadth fully opinion, adding only in join her that submit, unconstitutionally vague dy, I the advisory easily the defects of the can be confusing present adviso- and nature of the by legislature should corrected —and charged applies those under ry as it be. amend- Appropriate 169.121. Minn.Stat. § advisory also result in ment of the would RANDALL, Judge, dissenting. re- placing consequences the harsh of test them; upon deserving most fusal those respectfully I dissent and would affirm in upon persist those drivers who continu- varying for rea- all five trial courts which influence of ing to drive while under the charges against sons threw out the come drugs or after alcohol Judge agree I with the dissent of drivers. on one or more through judicial system that it affirmed the Huspeni to the extent previous occasions. cases, criminal in the two dismissals agree fully I with and Driver. McCauley KLAPHAKE, (concurring part, in Judge in his Judge Wozniak dissent of Chief dissenting part). in pro- due of the 14th amendment discussion in I concur the result reached IBut write relative to Moser. cess issue Weeding. in I majority McDonnell and accept reasoning I separately as cannot Lansing’s join Judge concurrence as to majority that reverse dissents and in the join Judge Huspeni’s I dissent as Moser. reinstate the revoca- trial courts and McCauley. to Driver in- implied in consent cases tions the civil Weeding. volving McDonnell and DAVIES, Judge (concurring part, in dis- senting part). in examining the facts the five After interplay between the civil and the cases statutory and case the relevant Under aspect, I cannot aspect and the DWI, police may arrest addressing law administratively revis- spe- commissioner from argument, appellants did not the ing During oral advisory. authority explicitly prohibiting any cifically cite musty publication, but is separate analysis as one could over articles legal stopped on basic Minnesota refusals and/or silence before when oral had dark street at 2:00 a.m. who has three charged proceeding. out civil were mixed drinks to six two to three beers advisory is read consent same honest, (or more), under- needs an who No distinction is stopped to all motorists. being forced to standable before possibili- face the made those who between volunteering information choose between ty and those who face of a criminal refusal against him or commit- which will be used penalties civil possibility ting crime. crime, this new refusal refusal. With inextricably bound and over- has so state five cases Unless trial courts these lapped criminal refusals affirmed, civil and pro- are the civil accept any pur- for the cedure, specific distinction cannot which has built into it the pose analysis. I thus examine trial with an denial of one’s consult a Mi- rulings in favor of all five drivers attorney specific denial courts’ warning (whether randa light guarantees you or not are of the constitutional dissenters, myself, interrogation), along custody will other into charged continue the new law which makes attach to the two defendants itself, refusing testing, in and essen- refusing testing. the crime tial element of a crime under Minn.Stat. examining provisions of the combined 169.121, pro- la. denial of the subd. 169.121, (Supp.1989) subd. la Minn.Stat. § warning Miranda tection of a and the deni- advisory, implied consent and the revised attorney al of an is laid out 2(b) (Supp.1989) Minn.Stat. § Nyflot Commis- (which together in ex- must be construed Safety, sioner 369 N.W.2d 512 of amining a crime has been commit- whether Nyflot, police (Minn.1985). were ad- ted), impossible, honesty log- and it is give warning not Miranda vised to and ic, implied out civil consent re- to carve a interrogate arrested until after drivers implied a criminal consent refus- fusal from portion completing consent al. five before us have criminal All cases investigation. refusing to When sub- overtones, in light I each and thus examine testing violation, only mit a was civil guarantees that must of the constitutional already staggering under the “camel” was any charge is criminal. applied be when Rights reconciling load of the Bill of other writers I in full accord with the am gathering of evidence in civil fourteenth amendment who discussed the prosecutions use in of criminal consent for process due issue and found DWI trials. With this new crime refus- confusing, inap- advisory at issue al, I find the camel’s back is broken and the drivers, factually propriate, and to most guarantee against com- fifth amendment inaccurate,1 an legally and have obli- We suffocating pelled self-incrimination be- gation people drive in this who vehicles mere fallen animal. oral neath a Since give reasonably clear-cut state to them a (or silence) just is an essential ele- is not. permitted refusal, idea and what of what ment of the conclusion is to The law of communication iden- inescapable first that a driver must have the full tify target right Miranda group warning that is to receive and its attendant target group attorney answering The here is not whenever message. before interrogation.2 legal jurists pouring he is the of such scholarly writers be stops problem he addresses will made out 1. the several thousand annu- When cases, examined, present, just but in ally State Minnesota are it is not isolated virtual- far, Moser, represents average ly clear that all. Although drinking stopped. chronic interrogation does not damage, noncustodial disproportionate While do a share drivers warning, trigger only percentage a Miranda the fact small it still remains that custody impact not on fifth stopped or not does their record the will on drivers against compelled prohibition testi- necessary priors amendment that their refusal not civil so Thus, guarantee Judge mony. exists support That constitutional Chief Woz- criminal. but times, just not custo- vigorous cogent argument point all citizens all niak’s arguing against conclusion, Even while this procedure in Minnesota and other the state concedes it. states is the Supreme Court case of California, Schmerber v. argument, Apple At oral Valley City (1966). 16 L.Ed.2d 908 An ex- Attorney recognized admitted that he Schmerber, amination U.S. problem constitutional with the refusal law 86 S.Ct. at it was clearly 1831 shows making at issue because refusal a crime some breakthrough kind of case which a Miranda require warning should before carved out a heretofore exception unknown questions to a driver about his record amendment, the fifth (an nothing but was refusal) essential element of criminal more than a restatement of an old could be United city attorney asked. The Supreme States “present Court responding question your body” to a direct from the case, States, Holt v. United panel why as to advisory could not be Holt, preceded by questions 54 L.Ed. 1021 to the driver ascertain if Justice the driver was a “first Holmes said: timer” (which would mean only refusal could be prohibition of compelling a man in a civil) subsequent (which or a offender criminal court to be witness him- possible would mean the officer had a crim- prohibition self is a physical use of suspect). inal following questions compulsion moral to exhort communi- place answers took verbatim: him, cations from not an exclusion of Q. On behalf of the you Commissioner body his as evidence when may appeared to concede that if an essential material. elicited, element of the crime were name- Id., Holt, (citing 252-53, 218 U.S. at ly priors, in response question to a direct ** * 6) (emphasis added). S.Ct. at That is what Miranda warning precede should Holt and Schmerber said. That is all Holt it, your weren’t those exact words? and Schmerber said. Holt involved the A. They were. question of whenever a defendant could be Q. an, That would per- that since a compelled display particular item of arrest, son is under it would be better clothing in jury. front of the With common from a standpoint constitutional give logic, sense and pointed Justice Holmes out Miranda warning you get if into the arguments contrary could elements, essential correct? unacceptable lead to the conclusion that A. Correct. compelled defendants could not even be to sit in the juries courtroom for to look at Q. Are there other elements to the compare and his looks a photograph to or

crime such refusing as to take the is description other supplied by the witnesses. that an element of the crime: Holt, 31 S.Ct. at 6. Holt 218 U.S. at course, yes. Refusing to take A. Of compelled found that a defendant could be the is test an element the crime of display to jury himself to a without offend- ing the fifth amendment. From Holt arose added). (emphasis a line of allowing escape cases the state to analyze I the fifth prohibition amendment the issue as of the fifth amendment underpinning follows. The of against compelled civil testimony only when it Thus, dy. purposes, silent) for right fifth amendment we exercise of the to remain a crime distinguish stops need not long right the roadside where makes the treasured to remain silent interrogation custody the illusory is to a driver not in procedural one. Even with the stops custody warning from those given where arrest and take of Miranda and even if an attor- available, place interrogation begins. question ney before is the driver has no real choice. custody only triggers necessity of right provides the for a Mi- If he waives the he evidence himself, warning. necessity respect against randa the and if he invokes his Also, always present. fifth amendment is the silence the statute makes this exercise of consti- fifth protection amendment defect of the refusal as crime tutional a crime. Minn.Stat. by requiring statute can contrary guaran- not be cured a Miranda subd. la is so to the warning given prior fundamentally tees of the fifth amendment it is advisory. (or Making the act of refusal flawed. “present the communication defendants to cause compel wanted to of compelled of refusal is body.” can be Minnesota’s crime their Defendants the crime. handwriting samples, give fingerprints, case. The es- “present your body” not a samples, height samples, hair and voice the communication from sence of refusal is measurements, weight fact, et cetera. Schmer of a your of an assertion own mouth ber, n. at n. at 1832 384 U.S. 86 S.Ct. will not take the test. namely you (over strong majority in 8. The Schmerber nothing of to do This crime refusal has dissents) and allowed forcible articulate body.3 with the driver’s pass analysis of blood to extraction rests The crime examine here on we question fifth on the same the amendment by the of a refusal communication Schmerber, ory like Holt Holt. report. of This refusal take a test. End being his merely required not to exclude relationship to or crime has no Holt body examination. But so as not to from exceptions carved Schmerber. Previous their rea choke on stretched and extended state, instance, to allowing out for carefully soning, majority the Schmerber handwriting samples are compel or voice principles reiterated the enunciated Jus situations where the “contents” of regarding the fifth tice Holmes in Holt were With handwrit- samples irrelevant. forbidding physical amendment use ing, the state wants evidence how compulsion or moral to extort communica writes, A not he writes. defendant what against tion from defendants to use them compelled to defendant cannot be write criminal cases. Id. confession, compelled can be to write but S.Ct. at 1831. The court defini Schmerber lazy quick jumps “a red fox over brown tively vigorously preserved the historic handwriting analyzed. his dog” so can be against privilege self-incrimination when compelled orally A cannot be defendant by the what was wanted state was evidence but, confess, instance, compelled can aof testimonial or communicative nature. Declaration of recite section History long line of authorities in guaranteed he Independence4 wherein consistently lower courts have limited its life, pursuit liberty, happiness, protection of situa- [fifth amendment] the authorites are interested because tions which the state seeks sub- examining the contents of that wonderful by obtaining merge those values the evi- document, but because want hear through dence an accused him talk out loud to examine characteris- simple expedient compelling it cruel * * * bar, of his voice. the case tics his mouth. some own from not care whether the state does drivers only privilege is fulfilled voice, lisp, husky have a or a head person guaranteed right to remain cold. The state is interested speak in the silent unless he chooses to communication of the contents the an- will. The unfettered exercise his own swer, i.e., yes pre- no. this is submit leading case in this is Holt v. court Unit- prohibited by act fifth cisely the amend- States, ed Rights ment of Bill of as discussed L.Ed. 1021. Holt and Schmerber. Schmerber, 762-63, at U.S. added). (emphasis Although agree state and federal courts of drunken drivers is of

I that the incidents submit that Schmerber stands four- concern, grave addressing the recent of square against refusal be- Minnesota’s law test, yet 4. evident that all 3. refuse to take a We hold these truths be self Should subsequently change equal, his mind and submit his are endowed men are created that blood, breath, body sample, it for a or urine rights, by with certain unalienable their creator totally nonprobative on life, would be the crime of refusal. irrelevant and among liberty pursuit and the these are my opinion, under the happiness. statute, it would not even to be by mitigating a court as circum- considered pronounce when it time to sen- stance came tence. (A Supreme this issue the United States testimonial communication is one which — Muniz, in Pennsylvania Court U.S. explicitly implicitly or relates a factual as- -, 2638, (1990) 110 S.Ct. 110 L.Ed.2d 528 information, sertion or discloses instructive, put any as it should to rest majority statements, vast oral or writ goes ten, inference that the fifth amendment will be testimonial and there will be underground , and takes a vacation when few instances where statement will driving the crime is convey while intoxicated. facts); information or assert Mi- Muniz, Arizona, suspected randa v. defendant the crime 384 U.S. 86 S.Ct. driving while intoxicated had been (1966), (The ar- 16 L.Ed.2d 694 fifth During rested and booked. the booking protection against amendment compelled procedure, questions Muniz was asked con- self-incrimination includes formal and in- name, cerning address, height, his weight, compulsion, formal procedural safe- color, eye birth, date of guards and his required current are even in pre- custodial age. questions On these majority interrogations interviews); trial Unit- that, although found Dionisio, ed States v. he was in fact 410 U.S. 93 S.Ct. subject of interrogation, custodial (1973), (While there 35 L.Ed.2d 67 the state was no Miranda warning, need may compel nor an accused transcript to read a was the having aloud, attendant an may attor- only for purpose ney present needed, as these obtaining were routine exemplar a voice to measure the booking questions. administrative Routine properties voice, individual of the accused’s booking inquiries exception serve as an and it not be used for the testimonial the strict rule complete that a full and content of transcript); and other semi- Miranda warning precede must custodial nal lengthy analysis, cases. After a interrogation before testimonial evidence Muniz majority determined that the fifth can be obtained from and used Rights protected amendment to the Bill of However, defendant. Muniz was asked an Muniz and him surrounded with the full eighth question, namely, panoply date of his of the United States Constitution Muniz, birthday. adult, sixth an had trou- you when he was asked “Do know what the ble with that answer. birthday?” Muniz, majority your date was of sixth — Muniz suppressed at-, that answer on fifth U.S. 110 S.Ct. at 2649. The grounds amendment Muniz court reasoning with the explicitly reiterated the hold- that the ings testimonial nature of his hesitant of Schmerber and Holt that the fifth sloppy answer question to a privilege protects amendment the accused easily should have been answered having provide would from the state with evi- communicate the factfinder evidence of dence of a “testimonial or communicative mind, impaired and evidence of an im- nature.” The Muniz court held that paired mind is being testimonial, evidence of under the order to be an accused’s “com- influence, being under the explicitly influence of munication re- implicitly, must late a alcohol is an essential element of the crime assertion or disclose factual infor- — Muniz, driving the influence of mation.” -, while under added). alcohol.5 (emphasis S.Ct. at 2643 The Muniz court thoroughly discussed It would raise naivete to an art form to Schmerber; States, Doe v. United argue that when a driver Minnesota is (1987), 101 L.Ed.2d 184 asked whether he or she will submit to a lence) Further, It testimony. was not the fact of when Muniz’s sixth tantamount birthday incriminating was but the inference adopt Judge Huspeni’s analysis in her dissent which could be drawn from the contents of his compels which shows the statute a refusal. The speech attempting question to answer the Brown, majority Deering relies on v. 839 F.2d protection against which fell under the pelled com- (9th Cir.1988) 541-542 to find a refusal precisely self-incrimination. This is the light would not be testimonial. In of the United By making nature of the case at bar. the refus- Supreme thorough analysis States Court’s criminal, testing being al of the refusal an essen- Muniz, Deering, a later case than I find Muniz crime, applying Supreme tial element of the the persuasive controlling. and (or analysis Court’s make a refusal si- Muniz

390 to call that Supreme Court “no” is neither a fac- United States that the answer test the infor- to the mandates of question subject the of one assertion nor disclosure tual warning. a The court on to care- amendment and Miranda Muniz went fifth mation. distinguish (and thus in as evi- fully allow Now, law of crimi- Minnesota’s contrast an- dence) nature” of Muniz’s the “slurred “no” itself refusal wherein the answer nal exemplar swer, likening a forced it to voice crime, alongside innocuous of a the part is Muniz’s quality, but found that for tonal Muniz, argue try and to question asked wrong was of the date oral communication exempt is law that Minnesota’s fifth line thus entitled to the and over spelled prohibitions from fifth amendment protection protection. That amendment stop the If we were to out Muniz. being present suppression necessitated not average resident on the street Minnesota Supreme birthday “the answer.” of the him Constitution of that inform found Muniz’s incorrect answer Court protects his States United incriminating question not because of birthday of his sixth guess at the date his but because quality the tonal voice of warning of and the aid a without Miranda the communication and testimonial of having attorney protect his but does not an his which could drawn from inference question a from the au- to answer direct — at-, Muniz, 110 See answer. (or negative si- a answer thorities wherein at 2645-47. S.Ct. lence) itself, likely in and of will crime refusal law be dis- The Minnesota cannot rock, up a to a pick that walk lead citizen looking for tinguished. The state is not courthouse, at it believ- and throw rock oral physical properties the driver’s ing he not suffer fools.” submit “need Dionisio, only con- answer as in but is argue cannot distinction between we inferential cerned with the content rights a Minnesota driver’s Muniz’s i.e., answer, it a a no. yes driver’s straight keep face faith rights with Muniz, Supreme In the United States our citizens. suspected operat- clothed a driver Court interesting It is to note that even before ing a vehicle under the influence with law, all present refusal and back when Rights, including the requirement Bill of civil, held implied consent was Minnesota warning presence a Miranda that the into evidence of a driv admission chose, hardly attorney, if he answer testing in crimi refusal to er’s submit life-threatening question of was the what privilege prosecution nal violated the futility birthday. his date of sixth compelled pursu self-incrimination distinguish refusal law attempting to our fifth amendment and ant federal by the fact that from Muniz is shown I, Minnesota Constitution Article Section direct, Minnesota’s refusal law far more Andrews, 297 212 Minn. State Muniz, thus, reasoning under (1973), 419 U.S. N.W.2d 863 cert. denied being more down. even struck L.Ed.2d argued by failing to one in Muniz that No Supreme that time the Minnesota Since birthday to his give correct answer so, Court, opportunities to do repeated fact, any In question Muniz law. broke overruling studiously has avoided State guarantee is not in a later there even a good today. law It is Andrews. driving jury trial for crime of drunk Willis, (Minn. 332 N.W.2d 180 State stumbling even find his would over 1983), Supreme delib the Minnesota Court any evidentiary answer to be of conse- even erately allowed Andrews to remain give jury weight, A could quence. it some in a though of the court three members give any weight. have to but would not concurring have overruled opinion would words, just possibility other on bare v. Ne- Dakota (a effect) Andrews based on South speculation jury that a pure ville, might find of Muniz’s answer the contents (1983). I note that re would birthday to communica- L.Ed.2d his sixth

about cently the Minnesota Constitution might aid in find- tive and testimonial interpreted give rights than again more guilty enough him DWI was the United presumption States Constitution.6 Minneso- There can be no such ta, states, only prevented like all from our criminal refusal statute that constitu- giving less. safeguards tional scrupulously were ad- hered to in the proceeding threshold be- law, examining this cause the proceeding threshold could be a we do not need to follow Neville as it does prior civil revocation. Civilrevocations are only not control the Neville issue. dis- found in proceeding a without the cussed refusal in constitu- the use of one’s a crimi- guarantees jury trial, tional gathered nal case when that refusal was of a an attor- ney, in innocence, evidence a civil case. Neville did the presumption not in of precise any way approach question be- state’s preponderance burden is a mere of us, is, fore which what does the fifth proof evidence beyond rather than a say prohibit amendment what does reasonable doubt. If Minnesota Su- when the refusal is the crime. itself preme Court was so concerned in Nord- rights strom about you constitutional that presents This new crime of refusal an- enhance, could not even based on a problem unique other in Minnesota and not unless, prior record, way in crime of in any touched on in addition to Sehmerber and record, Neville. I that being That is what call the crime of there “Nord- was ex- Nordstrom, strom issue.” In plicit State in the record that right evidence (Minn.1983), N.W.2d 901 the Minnesota Su- protected, to counsel has been what do we preme Court held: enhancing do with the concept of into a Absent gross valid waiver on the record prior misdemeanor a [a] civil counsel, right a defendant’s the misde- which, definition, consent violation meanor DWI conviction based on an un- not surrounded with constitutional plea guilty counseled cannot be used guarantees afforded Nordstrom when he gross as the basis of a misdemeanor had my his first I not rest analy- DWI? do charge. sis in issue, this dissent on the Nordstrom Nordstrom, 331 N.W.2d at 905. For some emphasize but mention it to the ex- now, time has Minnesota had a law allow- traordinary concern care and Minnesota your enhancement basic misde- has protection rights. for the itsof citizens’ meanor gross DWI into a misdemeanor if it I note the majority public mentions the is “two in in ten.” five or three Minn.Stat. policy argument interpretation of liberal subd. 3a What citing Szczech v. Comm’r. Public Safe- was, in Nordstrom court said essence al- ty, (Minn.App.1984) 343 N.W.2d 305 though you prior had a misdemeanor on State, Dep’t Safety Juncewski, your record, that misdemeanor could (Minn.1981). 308 N.W.2d 316 I do not dis- not be a used to enhance second misde- agree that the words used Szczech and gross meanor into a misdemeanor unless majority say Juncewski are what they the record the conviction showed that are, disagree majority’s but I posi- the first was based on a misdemeanor scru- tion are relevant. I read pulous adherence to to counsel. (whether Szczech Juncewski the viola- called for Nordstrom court this scru- tion was civil consent or the use of pulous though adherence even Nordstrom prosecution) such evidence in a DWI threshold, setting was where implicit statement in civil crime, con- violation, first not a civil viola- tion, proceedings sent the statutes are remedial presumably and thus constitutional safeguards given and should broad present were at that first effect. viola- tion. accept any cannot inference that the liberal short, interpret analysis, we the Minnesota suant to Constitu- this we conclude that the state requiring stringent demonstrating has tion as failed to sustain its burden a more burden on sufficiently compelling interest. opinion grants the state in our far more protection French, religious freedom than the broad State Minnesota v. N.W.2d 2 (Minn.1990). language of the Constitution. United States Pur- books, repeat that of- why assume in revocation cases can do we

interpretation civil religion, to or, get vow amend crime of for that fenders will apply the to time, now, the first ways, their and for matter, any other crime. against driving while seriously laws take Minnesota, interpre- the when it comes to intoxicated? statutes, criminal construes crimi- tation of fifth, of only and in I find violations the strictly the state Not do nal statutes Soto, sixth, to the and amendments the State v. fourteenth favor of accused. Constitution, (Minn.1985). naught for suggest I I it is all know N.W.2d 627-28 higher imposes as state on itself a exceptions no this ever the now of to rule carved get to instance, murder, to convictions. When refusal out, for sexual as- burden for second, first, third sault, I whether for the or all felonies. robbery, or serious civil, time, proof by the the burden of will was submit a close examination law preponderance a the of evidence. none has been carved out for state show that trial, right disagreement jury I no to a and the have There was traffic offenses. problems proof of for the state few majority interpretation the to were with the over interpreting for given and avenues of defense drivers were cases that discuss Now, prosecuted problem when refusals are driving underscores the cre- fewer. laws crime, a implied consent refus- as a the drivers will be entitled ated here when civil jury, pre- with a unholy by an trial will be clothed al is now elevated to alliance innocence, right of to sup- sumption not counsel criminal refusal. Laws are enforced, unwary.” will held trap “a for the Re- will be and the state posed to be have, crime, highest proof to implied fusal a and its attendant burden of we advisory, just trap proof beyond for a doubt. are not reasonable motorist, they are morass for the unwary implied a civil Leave consent refusals and bar. bench proceeding, they As are matter. a civil I that I note not do I find the workable and enforceable. submit Lastly, that crime, 169.121, separate are I subd. la and as a refusals neither. duo of Minn.Stat. §§ place 2(b) suggest logical in combination thereof attack unconstitutional, all, find, driving problem of while intoxicated is at I worst that source, namely, separate the they legitimate pur- no for the drinker are of use intended, -No has a pose they were mean- from his/her car. constitu- for which impaired, ing im- drive to a lessening incidents of tional even Yet, are, heart, degree. im- paired driving. slight you once drive We bottom paired, lawfully lawfully If and any line there were indicia that are arrested nation. crime, charged array to criminal with a then the changing civil enhancing already and rights federal state constitutional consent and any good, guar- set in penalties do sus- the accused is motion. These severe would antees, cases, might degree, impede in all winking at fifth amendment some pect However, study prosecution, prevent no I know of and some cases be easier. begins imply prob- Better attack successful one. that indicates even separating thought previous by lem drunken drivers from in Minnesota drivers DWI, sitting gross their vehicles rather than back until combination of misdemeanor DWI, has and a and con- there been arrest misdemeanor civil complaint, attempt then out expenditures carve sent attached Rights Bill legal exceptions fees because of thousands dollars costs, “carnage highways” on possibility of caused insurance increased highways, jail, Carnage on the and all days months in drunks. to several crimes, car- fines other are subservient possibility of hundreds dollars Yorktown, Valley Forge, Get- nage that we “piece was a of cake.” Now hang- tysburg the civil now gross misdemeanor on the where liberties yet another PARKER, shaped carefully Judge (dissenting). the balance were rights and hammered into so clean and so dissent, I join Judge Randall’s both as pure stand the test of time analysis and rhetoric. resist encroachment.

I dissent would trial affirm the cases.

courts across the board on these five

Case Details

Case Name: McDonnell v. Commissioner of Public Safety

Court Name: Court of Appeals of Minnesota

Date Published: Nov 9, 1990

Citation: 460 N.W.2d 363

Docket Number: C6-90-53, C7-90-224, C1-90-249, C5-90-478 and C0-90-842

Court Abbreviation: Minn. Ct. App.