State v. Howell

State of Minnesota, Respondent, v. Adrian Thomas Howell, Appellant.

A19-0119

STATE OF MINNESOTA IN COURT OF APPEALS

August 26, 2019

This opinion will be unpublished and may not be cited except as provided by Minn. Stat. § 480A.08, subd. 3 (2018).

Affirmed

Larkin, Judge

Chippewa County District Court

File No. 12-CR-18-442

Keith Ellison, Attorney General, Peter D. Magnuson, Assistant Attorney General, St. Paul, Minnesota; and

Matthew Haugen, Chippewa County Attorney, Montevideo, Minnesota (for respondent)

Joel A. Novak, John E. Mack, New London Law, P.A., New London, Minnesota (for appellant)

Considered and decided by Bratvold, Presiding Judge; Ross, Judge; and Larkin, Judge.

UNPUBLISHED OPINION

LARKIN, Judge

Appellant challenges his judgments of conviction for first-degree test refusal and driving after cancellation, arguing that his constitutional right to counsel was violated. He also argues that the evidence was insufficient to establish his guilt on an unadjudicated conviction of first-degree driving while impaired (DWI). We affirm.

FACTS

On July 28, 2018, Granite Falls Police Officer Kyler Jelen was on routine patrol and pulled a vehicle over after it failed to stop at a stop sign. Appellant Adrian Thomas Howell was the driver. Howell's eyes were "bloodshot, glossy, and watery," he avoided making eye contact, and his speech was slow.

Officer Jelen learned that Howell's driver's license was cancelled as inimical to public safety and arrested Howell for driving after cancellation. The officer handcuffed Howell and placed him in the back seat of a squad car. Officer Jelen then spoke with Howell's passenger, H.W., who admitted that she had a bag of hypodermic needles in the vehicle. Officer Jelen searched the bag and found four hypodermic needles, a tourniquet, a substance that appeared to be marijuana, and a few loose prescription drug pills. H.W. told Officer Jelen that one of the syringes recently contained methamphetamine. H.W. also told Officer Jelen that she and Howell had last used methamphetamine that morning.

Officer Jelen advised Howell of his rights pursuant to Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602 (1966). Howell agreed to speak with the officer. Officer Jelen removed Howell from the squad car, removed his handcuffs, administered field sobriety tests, andobserved signs of impairment. The officer transported Howell to Yellow Medicine County Jail.

While at the jail, the officer obtained a search warrant for Howell's blood. The officer advised Howell that refusal to submit to blood-alcohol testing is a crime and asked Howell if he would submit to a blood or urine test. See Minn. Stat. § 171.177, subd. 1 (Supp. 2017) ("At the time a blood or urine test is directed pursuant to a search warrant under sections 626.04 to 626.18, the person must be informed that refusal to submit to a blood or urine test is a crime."). Howell asked for a lawyer, but was not allowed to contact one. Howell refused to provide a sample for testing.

Respondent State of Minnesota charged Howell with first-degree DWI, first-degree test refusal, and driving after cancellation. The district court held an omnibus hearing in November 2018, and Howell raised three issues: (1) whether there was probable cause to support the first-degree DWI charge, (2) whether a defendant has a right under the Minnesota Constitution or the Fifth Amendment to consult an attorney before deciding whether to submit to a blood test pursuant to a search warrant, and (3) whether the expansion of the underlying traffic stop was supported by reasonable suspicion.

Neither the state nor Howell presented testimony at the omnibus hearing. Instead, the state offered eight exhibits: Officer Jelen's police report, two reports regarding Howell's criminal history, squad video from Officer Jelen's squad car, two videos from the jail, a report from Officer Jelen indicating that Howell refused to provide a blood sample, and a report indicating that Officer Jelen did not read Howell Minnesota's statutory breath-test advisory. See Minn. Stat. § 169A.51, subd. 2 (Supp. 2017) (stating that whenan officer requests a breath test, a "[b]reath test advisory" must be given that informs the driver of his right to consult a lawyer prior to testing). The district court took the matter under advisement and later rejected all of Howell's arguments for relief.

The parties agreed to proceed under Minn. R. Crim. P. 26.01, subd. 4, which allows a defendant to stipulate to the prosecution's case to obtain review of a ruling on a specified pretrial issue. The parties executed, and the district court received, Howell's Waiver of Rights Before Trial on Stipulated Evidence Pursuant to Minn. R. Crim. P. 26.01, subd. 4. Pursuant to the parties' agreement, the district court received 14 exhibits. Based on those exhibits, the district court found Howell guilty of first-degree DWI, first-degree test refusal, and driving after cancellation. The district court entered judgments of conviction for first-degree test refusal and driving after cancellation and sentenced Howell to serve 60 months in prison.

Howell appeals.

DECISION

I.

Howell contends that the police violated his limited right to counsel under the Minnesota Constitution because he requested counsel before the police asked him to submit to chemical testing and the police did not accommodate that request. Whether an officer has vindicated a driver's right to counsel presents a mixed question of law and fact. Mellv. Comm'r of Pub. Safety, 757 N.W.2d 702, 712 (Minn. App. 2008). If the facts are undisputed, we review de novo whether an individual's right to counsel was violated. Id.

Howell relies on Friedman v. Comm'r of Pub. Safety, in which the Minnesota Supreme Court held that "[t]he Minnesota Constitution, article I, section 6 gives [an individual] a limited right to consult an attorney before deciding whether or not to submit to chemical testing for blood alcohol." 473 N.W.2d 828, 829 (Minn. 1991); see Minn. Const. art. I, § 6 ("The accused shall enjoy the right to . . . have the assistance of counsel in his defense.").

After oral argument in this case, the supreme court decided State v. Rosenbush, which squarely addresses the issue presented in this case: whether a driver arrested on suspicion of DWI and presented with a search warrant authorizing a search of his blood has a limited right to counsel under article I, section 6 of the Minnesota Constitution, as recognized in Friedman, before deciding whether to submit to chemical testing. ___ N.W.2d ___, ___, 2019 WL 3000809, at *2 (Minn. July 10, 2019).

The facts of Rosenbush are similar to those in this case. A sheriff's deputy arrested Rosenbush for DWI and obtained a search warrant to take a sample of her blood for alcohol-concentration testing. Id. at *1. When the deputy presented Rosenbush with the search warrant, he read her Minnesota's statutory advisory regarding blood and urine tests, telling her that "refusal to submit to a blood or urine test is a crime." Id.; see Minn. Stat. § 171.177, subd. 1. Rosenbush allowed her blood to be drawn, and tests showed that she had an alcohol concentration over the legal limit. Rosenbush, 2019 WL 3000809, at *1.

The state charged Rosenbush with DWI, and she moved to suppress the results of her blood test, arguing that under Friedman, she had a limited constitutional right to consult with an attorney before submitting to the test and that the deputy failed to vindicate that right. Id. at *2. Rosenbush argued that regardless of the presence of a warrant, the consequences of her decision to submit to a blood test were identical to those that the driver in Friedman faced and that she therefore should have the same limited right to counsel as the driver in Friedman. Id. at *5. The state countered that the presence of a warrant fundamentally changed Rosenbush's encounter from the one at issue in Friedman. Id.

The supreme court agreed with the state and held that the limited right to counsel established in Friedman does not apply when an individual is asked to submit to a blood test pursuant to a warrant. Id. at *1, *5-6. The supreme court reasoned that "the existence of a search warrant eliminates many of the concerns that led [it] to expand the right to counsel in Friedman," explaining that when a suspected impaired driver is presented with a search warrant for a blood or urine test, "the driver is not meeting his adversary in the same manner as the driver in Friedman because a neutral judicial officer has determined that the police may lawfully obtain a sample of the driver's blood." Id. at *5 (quotation omitted).

Rosenbush was pending when this court heard oral arguments in this case. Howell addressed Rosenbush in this appeal, arguing that "[i]f Rosenbush prevails, [he] must prevail" and that "[e]ven if Rosenbush does not prevail, [he] should prevail." As support for the latter proposition, Howell argues that unlike Rosenbush, he requested an attorney and "[a]rticle I, section 6 of the Minnesota Constitution must cover when an arrestedDefendant asks for an attorney, when that Defendant is facing possible prosecution based on his answer to a question posed by State actors."

As support for that argument, Howell refers both to the state constitutional right to counsel under Friedman and the right to counsel that arises when an arrestee is read his Miranda rights. As to Howell's reliance on Friedman and his attempt to distinguish Rosenbush factually, the supreme court's reasoning in Rosenbush does not suggest a different outcome in this case based on Howell's request for counsel. See id. ("[W]e have never held that the Minnesota Constitution provides the subject of a search warrant with the right to consult counsel before a warrant can be executed."). We therefore follow Rosenbush and hold that because the police obtained a warrant for Howell's blood, he did not have a limited right to counsel under Friedman. We address Howell's arguments regarding the M...