Opinion
Nos. C7-97-1218, C9-97-1320.
Filed February 10, 1998.
Appeal from the District Court, Dakota County, File Nos. C1-97-6892 CX-97-7443.
Jeffrey S. Sheridan, (for appellant Skogman respondent Austing)
Hubert H. Humphrey III, Attorney General, Steven H. Alpert, Assistant Attorney General, (for appellant and respondent Commissioner of Public Safety)
Considered and decided by Short, Presiding Judge, Kalitowski, Judge, and Peterson, Judge.
This opinion will be unpublished and may not be cited except as provided by Minn. Stat. § 480A.08, subd. 3 (1996).
UNPUBLISHED OPINION
In this consolidated appeal, appellant Steven Jon Skogman challenges the revocation of his driver's license, arguing that his due process rights were violated when the arresting officer offered him a urine test without offering an alternative blood test and actively misled him to believe that refusing to take the urine test was a crime. Appellant Commissioner of Public Safety challenges the district court's determination that the arresting officer violated respondent Melvin Lawrence Austing's due process rights by failing to offer Austing a choice between a blood and urine test. We affirm Skogman v. Commissioner of Public Safety and reverse Austing v. Commissioner of Public Safety.
FACTS Facts Concerning Skogman
Rosemount police sergeant James O'Leary stopped and arrested appellant Steven Jon Skogman for driving under the influence in violation of Minn. Stat. § 169.121 (1996). After giving Skogman an opportunity to call his attorney, O'Leary read Skogman the relevant parts of the implied consent advisory, including the line "Refusal to take a test is a crime." When O'Leary reached the point where the advisory reads, "Will you take a (Breath) (Blood or Urine) test?" he asked Skogman, "Will you take the urine test?"
Skogman agreed to take a urine test. Based upon the results of the test, the Commissioner of Public Safety revoked Skogman's driver's license pursuant to the implied consent statute. The district court determined that O'Leary was not required to offer Skogman an alternative test because Skogman consented to the original test offered him, and sustained the Commissioner's revocation of Skogman's license.
Facts Concerning Austing
Respondent Melvin Lawrence Austing was stopped and arrested for driving while under the influence in violation of Minn. Stat. § 196.121 (1996). Inver Grove Heights police officer J. Gelhaye read Austing the relevant parts of the implied consent advisory, including the statement, "Refusal to take a test is a crime." Gelhaye then asked Austing, "Will you take a urine test?" Austing answered, "Yes." Gelhaye did not offer respondent a blood test. Based upon the result of the urine test, Austing's drivers license was revoked pursuant to the implied consent statute. The district court found that Austing's due process rights were violated when Gelhaye failed to offer him a choice between a urine or blood test, and rescinded the Commissioner's revocation of Austing's license.
DECISION
Because the facts are not in dispute, we review de novo the district court's application of the law. Palme v. Commissioner of Pub. Safety , 541 N.W.2d 340, 344 (Minn.App. 1995), review denied (Minn. Feb. 27, 1996).
Any person who drives a motor vehicle consents to chemical testing of that person's blood, breath, or urine when legally requested by a peace officer. Minn. Stat. § 169.123, subd. 2(a) (1994). Minn. Stat. § 169.123, subd. 2(c) (1994), provides:
The peace officer who requires a test pursuant to this subdivision may direct whether the test shall be of blood, breath, or urine. Action may be taken against a person who refuses to take a blood test only if an alternative test was offered and action may be taken against a person who refuses to take a urine test only if an alternative test was offered.
Skogman and Austing argue that their due process rights were violated when the arresting officers offered them a urine test without offering an alternative test and actively misled them to believe that refusing to take a urine test is a crime.
When addressing this issue in Workman v. Commissioner of Pub. Safety , 477 N.W.2d 539, 540 (Minn.App. 1991), this court stated that prior versions of Minn. Stat. § 169.123, subd. 2(c), explicitly required that a person be given a choice as to which alcohol concentration test the person would take. However, the Workman court concluded that the legislature had amended the statute to remove this requirement and held that, under the amended statute, an officer was not required to give a driver the choice of an alternative test when the driver was offered and agreed to take a blood test. Id. We conclude that Workman controls our decisions in these cases.
The implied consent advisories given to Skogman and Austing were not misleading. Both correctly stated, "Refusal to take a test is a crime." See Minn. Stat. § 169.121, subd. 1a (1996) (it "is a crime for any person to refuse to submit to a chemical test of the person's blood, breath, or urine."). Due process does not require a peace officer to offer a choice between a urine test and an alternative test. Moe v. Commissioner of Pub. Safety , ___ N.W.2d ___, ___ Nos. C9-97-1706 C9-97-1821, slip op. at 4 (Minn.App. Feb. 10, 1998); see also Catlin v. Commissioner of Pub. Safety , 490 N.W.2d 445, 447 (Minn.App. 1992) (the failure of the advisory to warn of every possible consequence does not violate fundamental fairness inherent to due process).
The officers who arrested Skogman and Austing did not need to offer them an alternative test unless they refused the urine test. Workman , 539 N.W.2d at 540. When Skogman and Austing were asked if they would take a urine test, both agreed to take the test. Therefore, there was no need to offer an alternative test.
The district court did not err in sustaining the revocation of Skogman's license. The district court erred in rescinding the revocation of Austing's license.
Skogman v. Commissioner of Public Safety affirmed and Austing v. Commissioner of Public Safety reversed.