State v. Mike, A18-0730

919 N.W.2d 103

STATE of Minnesota, Appellant,

v.Charles Lee MIKE, Respondent.

A18-0730

Court of Appeals of Minnesota.

Filed August 27, 2018

Review Granted November 13, 2018

Stay Granted November 13, 2018

Lori Swanson, Attorney General, St. Paul, Minnesota; Mark S. Rubin, St. Louis County Attorney, Karl G. Sundquist, Assistant County Attorney, Virginia, Minnesota (for appellant).

Charles A. Ramsay, Daniel J. Koewler, Ramsay Law Firm, P.L.L.C., Roseville, Minnesota; and Gordon C. Pineo, Deal & Pineo, P.A., Virginia, Minnesota (for respondent).

Considered and decided by Schellhas, Presiding Judge; Larkin, Judge; and Stauber, Judge.^*

LARKIN, Judge

In this pretrial appeal, the state challenges the district court's order suppressing blood-test results and dismissing driving-while-impaired (DWI) charges. The order was based on the state's failures to provide respondent-driver an opportunity to consult with an attorney before submitting to testing pursuant to a search warrant and to advise respondent-driver that refusal to submit to a blood test is a crime. The district court also reasoned that suppression was required on due-process grounds. Because respondent-driver did not have a right to consult with an attorney, the state's failure to provide the advisory does not justify suppression, and respondent-driver is not entitled to relief under the due-process theory on which the district court relied, we reverse and remand.

FACTS

Appellant State of Minnesota charged respondent Charles Lee Mike with two counts of third-degree DWI under Minn. Stat. § 169A.20, subd. 1(1) (2016) (driving under the influence of alcohol), and Minn. Stat. § 169A.20, subd. 1(5) (2016) (operating a motor vehicle with an alcohol concentration of 0.08 or more as tested within two hours of operating). Mike moved to suppress the evidence supporting the charges, and the district court held an evidentiary hearing on the motion. The relevant facts were developed at the hearing as follows.

On October 7, 2017, at approximately 4:00 p.m., Deputy Troy Nichols of the St. Louis County Sheriff's Department was dispatched to a motorcycle accident in Greenwood Township. At the scene, Deputy Nichols made contact with Mike, who was being treated for injuries inside an ambulance. Mike was transported to a hospital for medical care. Based on his observations and discussions with witnesses, Deputy Nichols believed that Mike was under the influence of alcohol, and he obtained a search warrant authorizing collection of a sample of Mike's blood for chemical testing.

Deputy Nichols executed the search warrant while Mike was at the hospital. When executing the warrant, Deputy Nichols did not inform Mike that refusal to submit to a blood test is a crime. Nor did Deputy Nichols offer Mike an opportunity to consult with an attorney before submitting to the blood test. Hospital staff drew a sample of Mike's blood pursuant to the warrant at approximately 7:20 p.m. Chemical testing revealed that Mike's alcohol concentration was 0.23.

In district court, Mike argued that his blood-test results should be suppressed for two reasons. First, Deputy Nichols did not provide him an opportunity to consult with an attorney before the blood sample was drawn and therefore violated his limited right to counsel under the Minnesota Constitution, as recognized in Friedman v. Comm'r of Pub. Safety , 473 N.W.2d 828, 829 (Minn. 1991). Second, Deputy Nichols did not inform him that refusal to submit to a warranted blood test is a crime, as required by Minn. Stat. § 171.177, subd. 1. The district court agreed and granted Mike's motion to suppress, reasoning that Mike "had a right to consult with counsel" and that Mike "was not adequately informed of his rights." The district court also reasoned that due process required suppression. Having suppressed the blood-test results, the district court dismissed the charges against Mike. The state appeals.

ISSUES

I. Did the district court err by suppressing Mike's blood-test results on the ground that the state did not provide Mike an opportunity to consult with an attorney before submitting to chemical testing?

II. Did the district court err by suppressing Mike's blood-test results on the ground that the state did not inform Mike that refusal to take a warranted blood test is a crime?

III. Did the district court err by suppressing Mike's blood-test results on due-process grounds?

ANALYSIS

The state's ability to appeal in a criminal case is limited. State v. Lugo , 887 N.W.2d 476, 481 (Minn. 2016). The state may generally appeal "from any pretrial order" if the "district court's alleged error, unless reversed, will have a critical impact on the outcome of the trial."

Minn. R. Crim. P. 28.04, subds. 1(1), 2(2)(b). "Dismissal of a complaint satisfies the critical impact requirement." State v. Trei , 624 N.W.2d 595, 597 (Minn. App. 2001), review dismissed (Minn. June 22, 2001). Because the district court dismissed the charges against Mike based on its order suppressing his blood-test results, the critical-impact requirement is satisfied, and we proceed with our review of the district court's suppression order. "When reviewing pretrial orders on motions to suppress evidence, [appellate courts] independently review the facts to determine whether, as a matter of law, the court erred in its ruling." State v. Jackson , 742 N.W.2d 163, 168 (Minn. 2007).

I.

We first consider whether Mike had a limited right to consult with an attorney before submitting to blood testing. In Friedman , the supreme court held that "[t]he Minnesota Constitution, article I, section 6 gives [a driver] a limited right to consult an attorney before deciding whether or not to submit to chemical testing for blood alcohol." 473 N.W.2d at 829. In State v. Hunn , the supreme court clarified that "[o]n a request to consent to urine testing, a driver's limited constitutional right to counsel recognized in Friedman ... is not triggered unless the statutory implied-consent advisory is read." 911 N.W.2d 816, 816-17 (Minn. 2018). The supreme court explained:

The Friedman holding is limited to implied-consent cases because of the unique decision and consequences that come with the reading of the advisory. The legal ramifications of the decision to submit (or not submit) to chemical testing after the advisory reading are significant. Of course, consenting may provide law enforcement with the evidence necessary to secure a conviction. But refusing will automatically result in a mandatory license revocation, and may still result in a criminal DWI conviction. As we have recognized, it may not be clear to a driver faced with the advisory whether the consequences for consenting or refusing will be worse. That unique decision is not present here.

Id. at 819-20 (citations omitted).

The state relies on Hunn , arguing that, because "the implied consent advisory was not read in the present case, the right to counsel [was] not required."

The Hunn opinion was released after the district court filed its suppression order in this case. Thus, the district court did not have the benefit of Hunn when it granted Mike's motion to suppress. But under Hunn , Mike did not suffer a violation of the limited right to counsel recognized in Friedman because he was not read an implied-consent advisory.

Mike disagrees, arguing that " Hunn 's applicability with respect to the constitutional right to counsel is very limited. It only applies to the narrow span of cases that arose between the Birchfield and Trahan decisions and the implementation of the new DWI [laws] in 2017." See Birchfield v. North Dakota , ––– U.S. ––––, 136 S.Ct. 2160, 195 L.Ed.2d 560 (2016) ; State v. Trahan , 886 N.W.2d 216 (Minn. 2016).We recognize that Hunn is based on a prior version of Minnesota's implied-consent law, 911 N.W.2d at 821, and that significant amendments were made to Minnesota's DWI and implied-consent laws in 2017.¹ However, none of the 2017 changes to Minnesota's DWI and implied-consent laws affect Hunn 's straightforward holding that "a driver's limited constitutional right to counsel ... is not triggered unless the statutory implied-consent advisory is read." Id. at 816. In this case, Mike was not read an implied-consent advisory and therefore was not faced with "the unique decision and consequences that come with the reading of the advisory." Id. at 819-20.

Mike also argues that the Hunn court "concluded that [the] constitutional right to counsel is not triggered unless the implied consent procedure is invoked ." (Emphasis added.) He argues that the 2017 amendments to Minnesota's DWI and implied-consent laws "effectively created a situation where the ‘Implied Consent Law’ is de facto invoked every time a search warrant for a blood or urine sample is executed during a DWI investigation."

As to this issue, word choice matters. Hunn specifically held that the Friedman right to counsel is "not triggered unless the statutory implied-consent advisory is read ." Id. at 816-17 (emphasis added). The supreme court consistently used a form of the verb "read" to describe—and limit—the circumstances that trigger a driver's limited constitutional right to counsel. See, e.g. , id. ("[A] driver's limited constitutional right to counsel recognized in Friedman ... is not triggered unless the statutory implied-consent advisory is read."); id. at 819-20 ("The Friedman holding is limited to implied-consent cases because of the unique decision and consequences that come with the reading of the advisory."); id. at 820 ("Accordingly, we hold that the limited right to counsel recognized by Friedman is triggered only when the implied-consent advisory is read."); id. ("Because the officer did not read the implied-consent advisory here, under Friedman the limited right to counsel was not triggered."). In fact, the supreme court did not use a single form of the verb "invoke" in the Hunn opinion.

We therefore reject Mike's argument that the Friedman right to counsel is triggered any time...