(dissenting).
I respectfully dissent. The supreme court’s reasoning in State, Dep’t of Pub. Safety v. Lauzon, 302 Minn. 276, 224 N.W.2d 156 (1974) is persuasive. I recognize the majority’s argument that Lauzon is a 1974 case, and I recognize that in the last 29 years there has been an expansion of DUI and implied consent cases (and their interpretation), and their progeny, perhaps in a volume equaling the stars in the heaven on a clear summer night. But notwithstanding that, I suggest the Minnesota Supreme Court would have to either overrule Lauzon or so narrow the facts that this case would not come under its umbrella. I do not see that either has been done.
In Lauzon, the court held that the driver’s refusal to submit to testing was not reasonable, on the theory that the driver was following the advice of counsel, where
the police clearly informed defendant, both before and after he talked with counsel, that if he did not permit chemical testing, he would lose his driver’s license.
Lauzon, 302 Minn, at 277, 224 N.W.2d at 157 (emphasis added). The court went on to state that once appellant expressed confusion, an officer must “attempt to explain to a confused driver that regardless of what his lawyer said, he must permit testing or lose his license.” Id. This language indicates that confusion, after being told by your attorney not to take the test, is not a reasonable reason to refuse the test unless (a) you express confusion to law enforcement, and (b) they did nothing to clear up your confusion. Id. (emphasis added).
*602The same reasoning was noted in Thurman v. Comm’r of Pub. Safety, No. C1-96-1107, 1996 WL 745323 (Minn.App. Dec.31, 1996) (unpublished opinion). In Thurman, the appellant appealed the district court’s order sustaining the revocation of his driver’s license pursuant to the implied consent law. The appellant argued his refusal to submit to chemical testing was reasonable because the officer made no attempt to clear up his confusion regarding his testing obligations and because the officer failed to inform him that despite the advice of counsel, he was obligated to take a test at the chemical testing unit or lose his license. The court recognized that a driver’s claim that a refusal was reasonable because he was merely following the advice of counsel
will succeed only if the police misled a driver to believe the refusal was reasonable or if police made no attempt to explain to a confused driver that regardless of what his lawyer said, he must permit testing or lose his license.
Id. at *2 (emphasis added)
Here, the officer’s duty to explain arose after appellant talked with counsel and expressed confusion. Counsel for the parties stipulated to the following facts:
1. Petitioner was arrested on April 26, 2002.
2. The police read Petitioner the Implied Consent Advisory beginning at about 12:24 a.m.
3. Petitioner told the Police Officer he wished to speak to a Lawyer.
4. Petitioner then called a friend who in turn called Attorney Paul Ro-gosheske.
5. Attorney Rogosheske then telephoned the police station where Petitioner was being detained and spoke with Petitioner.
6. Attorney Rogosheske advised Petitioner to refuse testing.
7. Petitioner then told the Police Officer who had invoked the Implied Consent that he had been advised to refuse testing by Attorney Rogosh-eske. Exhibit B is the Implied Consent Advisory and is received in evidence.
8. Petitioner expressed confusion.
9. There was no further conversation.
10. The Petitioner was deemed to have refused testing at 12:52 a.m.
The stipulation specifically states in item number 8 that appellant expressed confusion following his conversation with an attorney. Item number 9 means the officer made no attempt to clear up that confusion. The record shows the officer did not talk to appellant any more, but instead, completed the implied consent advisory.
I specifically disagree with that part of the majority’s decision, which states that even if the cited language in Lauzon created a duty to clear up confusion in some cases, the district court can be affirmed because appellant has the burden of showing that he was confused with respect to rights or consequences and did not bear that burden. The majority states in pertinent part:
But appellant did not testify at the revocation hearing, and the completed implied consent advisory indicates that appellant was not confused about his rights.
First, appellant did “testify” because the stipulation agreed to by the parties is evidence that the court must receive and the court must then assign a value to it. Secondly, the completed implied consent advisory, taken well before the stipulation and the court hearing, has no value because item number 8 of the stipulation super*603sedes it, trumps it, and it cannot be used to impeach the later stipulation.
Even respondent concedes that a stipulation between attorneys is a stipulation and cannot be looked at with hindsight, and that a party signing the stipulation cannot later say, “Gee, I wish now I hadn’t said that.”
Then, after conceding at oral argument that a stipulation is a stipulation, and does not have to be looked behind, respondent argues that item number 8 of the stipulation, “express confusion,” does not indicate confusion about what! I could not disagree more. From looking at the stipulation as a whole, I will take judicial notice that item number 8 means it was stipulated that the petitioner was confused by being told in exhibit B, the implied consent advisory, that refusal to take the test is a crime in and of itself, and then next, being told by his attorney not to take the test. I cannot believe in good conscience that the attorneys who wrote this stipulation meant anything other than that clear and precise meaning for item number 8 of the stipulation.
I find these facts squarely under Lau-zon and Thurman, meaning: (1) confusion is not a defense unless it is expressed; (2) confusion was expressed here; (3) the expressed confusion was- not cleared up; (4) the driver’s refusal was, therefore, reasonable.
I respectfully dissent and would have reversed the district court.