This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (2014).
STATE OF MINNESOTA
IN COURT OF APPEALS
A16-0358
Raymond Scott Henry, petitioner,
Appellant,
vs.
Commissioner of Public Safety,
Respondent.
Filed December 5, 2016
Affirmed
Johnson, Judge
Benton County District Court
File No. 05-CV-15-2194
Robert D. Stoneburner, Stoneburner Law Office, Paynesville, Minnesota (for appellant)
Lori Swanson, Attorney General, Frederic J. Argir, Dominic J. Haik, Assistant Attorneys
General, St. Paul, Minnesota (for respondent)
Considered and decided by Reilly, Presiding Judge; Halbrooks, Judge; and Johnson,
Judge.
UNPUBLISHED OPINION
JOHNSON, Judge
The commissioner of public safety revoked Raymond Scott Henry’s driver’s license
after he was arrested for driving while impaired and refused to submit to a breath test.
Henry petitioned for rescission of the revocation on the grounds, among others, that his
limited right to consult with an attorney was not vindicated, that he did not refuse to submit
to a breath test, and that, if he did refuse, his refusal was reasonable. The district court
denied the petition. We affirm.
FACTS
On October 17, 2015, at 1:44 a.m., Deputy Cody Eisenschenk of the Benton County
Sheriff’s Office stopped a vehicle that was driven by Henry. Deputy Eisenschenk arrested
Henry for driving while impaired (DWI). At the Benton County jail, Deputy Eisenschenk
read Henry the implied-consent advisory in the alcohol-testing room. Henry told Deputy
Eisenschenk that he wished to contact an attorney. Henry requested access to his cellular
telephone so that he could find the telephone number of a person he described as “my
attorney.” After some discussion, Deputy Eisenschenk granted the request. Deputy
Eisenschenk then escorted Henry to a separate room with a desk, a telephone, and
telephone directories. Henry used the jail telephone to call his attorney and left a voice-
mail message.
After Henry left the voice-mail message for his attorney, Deputy Eisenschenk told
Henry that he could use the telephone directories to contact other attorneys. Henry did not
attempt to do so. After further discussion with Deputy Eisenschenk, Henry stood up as if
he was ready to leave the room. Henry was in the room with the jail telephone and
telephone directories for approximately four minutes.
Deputy Eisenschenk escorted Henry back to the alcohol-testing room and asked him
to submit to a breath test. Henry initially responded by asking multiple questions. He later
said repeatedly that he would like to speak with an attorney. Deputy Eisenschenk informed
Henry repeatedly that he would need to make a decision to either submit to a breath test or
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not. Deputy Eisenschenk advised Henry that an unreasonable delay in making a decision
would be deemed a refusal to submit to a breath test. Deputy Eisenschenk asked Henry
several times whether he would submit to a breath test, but Henry never answered the
question. Eventually Deputy Eisenschenk said that he would ask Henry one more time
whether he would submit to a breath test. Henry again did not answer in the affirmative or
the negative but, rather, indicated that he wanted to consult with an attorney. Deputy
Eisenschenk deemed Henry to have refused to submit to a breath test.
The commissioner revoked Henry’s driver’s license. Henry petitioned the district
court for judicial review of the revocation. In his petition, he claimed that his limited right
to counsel was not vindicated, that he did not refuse to submit to chemical testing, and that,
if he did refuse, any such refusal was reasonable. The district court conducted a hearing at
which the commissioner called Deputy Eisenschenk as a witness and introduced two
exhibits: a copy of the implied-consent advisory that the deputy read to Henry and a video-
recording of the interactions between the deputy and Henry at the jail. Henry testified and
introduced a summary of the evidence reflected in the video-recording pursuant to rule
1006 of the Minnesota Rules of Evidence.
The district court issued a written order in which it denied Henry’s petition and
sustained the revocation of his driver’s license. The district court reasoned that Henry’s
limited right to counsel was vindicated, that he refused to submit to a breath test, and that
his refusal was not reasonable. Henry appeals.
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DECISION
I. Limited Right to Counsel
Henry first argues that the district court erred by concluding that his limited right to
counsel was vindicated. Specifically, Henry argues that his limited right to counsel was
not vindicated because he was allowed only four minutes in which to contact an attorney.
A driver who is arrested for DWI has a limited right to consult with an attorney
before deciding whether to submit to chemical testing. Friedman v. Commissioner of Pub.
Safety, 473 N.W.2d 828, 835 (Minn. 1991) (citing Minn. Const. art. I, § 6). The driver’s
limited right to consult with an attorney before testing is “vindicated if the person is
provided with a telephone prior to testing and given a reasonable time to contact and talk
with counsel.” Id. (quotation omitted). This court applies a clear-error standard of review
to a district court’s factual findings and a de novo standard of review to a district court’s
conclusion as to whether a driver’s limited right to counsel was vindicated. Mell v.
Commissioner of Pub. Safety, 757 N.W.2d 702, 712 (Minn. App. 2008); State v.
Christiansen, 515 N.W.2d 110, 112 (Minn. App. 1994), review denied (Minn. June 15,
1994).
In deciding whether a driver’s limited right to counsel was vindicated, a court
generally should consider the totality of the circumstances surrounding the implied-consent
advisory and the driver’s opportunity to consult with an attorney. Mell, 757 N.W.2d at
713; Groe v. Commissioner of Pub. Safety, 615 N.W.2d 837, 841 (Minn. App. 2000),
review denied (Minn. Sept. 13, 2000). This court’s caselaw has recognized a few factors
that are relevant to a totality-of-the-circumstances analysis: whether the driver made a
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good-faith and sincere effort to reach an attorney, the time of day when the driver attempted
to contact an attorney, and the length of time the driver had been under arrest when his
consultation time was ended. See Palme v. Commissioner of Pub. Safety, 541 N.W.2d 340,
344-45 (Minn. App. 1995), review denied (Minn. Feb. 27, 1996); Kuhn v. Commissioner
of Pub. Safety, 488 N.W.2d 838, 842 (Minn. App. 1992), review denied (Minn. Oct. 20,
1992). If a driver’s challenge is based solely on the amount of time allowed for contacting
an attorney, the inquiry into whether the driver made a good-faith and sincere effort to
reach an attorney is a threshold issue. See Gergen v. Commissioner of Pub. Safety, 548
N.W.2d 307, 309 (Minn. App. 1996), review denied (Minn. Aug. 6, 1998).
In this case, the district court determined the threshold issue as follows:
Petitioner failed to make a good faith effort to contact
an attorney, because he voluntarily stopped trying after he
called the first attorney and left a voice message. . . . The jail
video clearly shows Petitioner never making any attempts to
contact other attorneys. Deputy Eisenschenk was given no
indication that Petitioner wanted any more time, so he asked
Petitioner if he was done contacting attorneys. Petitioner
responded by restacking the directories and standing up to
leave the room. Petitioner never asked Deputy Eisenschenk
for more time. . . . Petitioner failed to meet the good faith
threshold required to determine if he was given a reasonable
amount of time to contact an attorney. Therefore, his right to
consult with an attorney was vindicated.
The district court’s analysis is supported by the district court’s findings of fact, the
evidentiary record, and the applicable caselaw. Deputy Eisenschenk testified that he
provided Henry with a telephone and telephone directories, that Henry made only one call,
and that Henry communicated to him that he did not wish to make any additional calls to
other attorneys. The deputy’s testimony is corroborated by our review of the video-
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recording that was received into evidence at the hearing. The facts of this case are similar
to the facts of other cases in which we concluded that a driver’s limited right to counsel
was vindicated. For example, in Gergen, the driver made one unsuccessful attempt to call
an attorney before saying that “he was done looking for an attorney.” 548 N.W.2d at 310.
We concluded that the district court did not err by denying Gergen’s petition on the ground
that he “did not make a good faith effort to contact an attorney.” Id. Similarly, in Mell,
the driver made no attempt to call an attorney, walked away from the telephone, and
“nodded his head” when asked if he was done trying to contact an attorney after only three
minutes. 757 N.W.2d at 713. We concluded that the district court did not err by finding
that the driver ceased his good-faith effort to contact an attorney. Id. Similarly, Henry
ceased engaging in a good-faith and sincere effort to contact an attorney before Deputy
Eisenschenk asked him to submit to a breath test. Accordingly, Henry cannot satisfy the
threshold issue for a challenge to the amount of time that he was given to consult with an
attorney. See Gergen, 548 N.W.2d at 309-10.
Henry nonetheless contends that, even if he chose to not call more than one attorney
when he was given the opportunity, he changed his mind shortly thereafter and should have
been permitted to contact other attorneys at that time. Henry cites State v. Slette, 585
N.W.2d 407 (Minn. App. 1989), in which this court stated that “officers should recognize
the withdrawal of a DWI arrestee’s initial waiver of the right to consult with counsel when
the change of mind is immediate and does not interfere with police officers’ processing of
a case or their ability to administer [a breath] test.” Id. at 409. Henry cannot rely on Slette
because the case is distinguishable, for at least three reasons. First, the defendant in Slette
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waived his right to consult with an attorney without making any telephone calls. Id. at 408.
But Henry exercised his right to contact an attorney and chose to call only one attorney.
Second, Henry’s renewed requests to consult with an attorney did not occur immediately
after he voluntarily terminated his opportunity to use the jail telephone and telephone
directories. Rather, he did not request another opportunity to consult with an attorney until
he was brought to the testing room and was read the implied-consent advisory three
additional times. Third, Henry did not expressly state that he wanted to contact an attorney
other than the attorney for whom he already had left a message. Thus, it appears that he
wanted Deputy Eisenschenk to allow him to wait until his attorney returned his call. But
the caselaw is clear that a driver who has been arrested for DWI “cannot be permitted to
wait indefinitely for a call that may never come.” Palme, 541 N.W.2d at 345. For that
reason, Henry’s last-minute request to consult with an attorney, if granted, would have
interfered with Deputy Eisenschenk’s “processing” of Henry’s case and the deputy’s
“ability to administer [a breath] test.” See Slette, 585 N.W.2d at 409. Accordingly, Henry
was not entitled to change his mind about continuing to try to consult with an attorney.
Thus, the district court did not err by concluding that Henry’s limited right to
counsel was vindicated.
II. Finding of Refusal
Henry also argues that the district court erred by finding that he refused to submit
to a breath test. Specifically, Henry argues that he “did not verbally refuse at any point in
the testing process” and did not “refuse testing by his conduct” but “consistently . . .
reiterated his desire to consult with an attorney prior to making his testing decision.”
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A law-enforcement officer may request that a driver submit to chemical testing if
the officer has “probable cause to believe the person was driving, operating, or in physical
control of a motor vehicle” while impaired. Minn. Stat. § 169A.51, subd. 1(b) (2014). “A
driver has a duty to comply reasonably with the administration of a test, and failure to do
so constitutes a refusal.” Sigfrinius v. Commissioner of Pub. Safety, 378 N.W.2d 124, 126
(Minn. App. 1985). “A driver may communicate refusal to take a test by either words or
acts.” Anderson v. Commissioner of Pub. Safety, 379 N.W.2d 678, 681 (Minn. App. 1986).
In other words, a driver may be deemed to have refused chemical testing by his or her
actions, even in the absence of an oral refusal. Busch v. Commissioner of Pub. Safety, 614
N.W.2d 256, 259-60 (Minn. App. 2000). “[R]efusal to submit to chemical testing includes
any indication of actual unwillingness to participate in the testing process, as determined
from the driver’s words and actions in light of the totality of the circumstances.” State v.
Ferrier, 792 N.W.2d 98, 102 (Minn. App. 2010) (affirming conviction of criminal refusal
to submit to chemical testing), review denied (Minn. Mar. 15, 2011). This court applies a
clear-error standard of review to a district court’s finding of fact that an arrested driver has
refused to submit to chemical testing. Stevens v. Commissioner of Pub. Safety, 850 N.W.2d
717, 722 (Minn. App. 2014).
In this case, the district court found that Henry’s “conduct frustrated the implied
consent process and amounted to a refusal to test, despite him never verbally refusing
chemical testing.” The district court noted that Henry initially asked questions of Deputy
Eisenschenk about the potential consequences of his decision to submit or refuse and later
said that he wanted to consult with an attorney. The district court also noted that when
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Deputy Eisenschenk clearly gave Henry one last chance to make a decision, Henry refused
to answer the question. The district court’s finding is supported by the evidentiary record.
After Henry was escorted to the testing room, Deputy Eisenschenk asked him at least seven
times if he would submit to a breath test. Henry consistently avoided the question. Henry
repeatedly said that he wanted to consult with an attorney. But Henry previously had an
opportunity to contact an attorney and voluntarily terminated the opportunity. On multiple
occasions, Deputy Eisenschenk warned Henry and reread the portion of the implied-
consent advisory that states that an unreasonable delay would be deemed a refusal to submit
to a test.
The facts of this case are very similar to the facts of Linde v. Commissioner of Pub.
Safety, 586 N.W.2d 807 (Minn. App. 1998), review denied (Minn. Feb. 18, 1999), in which
an arrested driver avoided a law-enforcement officer’s request to submit to chemical testing
by saying that he first wanted to speak with an attorney. Id. at 808-09. The officer
informed the driver that he would need to make an uncounseled decision and reread a
portion of the implied-consent advisory, but the driver responded by saying, “Not until I
talk to my lawyer.” Id. at 808. This court affirmed the district court’s finding that the
driver refused to submit to chemical testing. Id. at 810; see also Anderson, 379 N.W.2d at
681 (concluding that driver refused test by being evasive and nonresponsive).
Thus, the district court did not err by finding that Henry, by his conduct, refused to
submit to chemical testing.
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III. Reasonableness of Refusal
Henry argues in the alternative that, if the district court properly found that he
refused chemical testing, his refusal was reasonable. He contends that any refusal by him
would be reasonable “because he clearly, promptly and repeatedly expressed renewed
interest in” consulting with an attorney before making a decision whether to submit to
chemical testing.
A person seeking the rescission of the revocation of a driver’s license may prevail
by proving that, “at the time of the refusal, the petitioner’s refusal to permit the test was
based upon reasonable grounds.” Minn. Stat. § 169A.53, subd. 3(c) (2014). Caselaw
recognizes that reasonable grounds may exist “if the police have misled a driver into
believing a refusal was reasonable or if the police have made no attempt to explain to a
confused driver his obligations.” Frost v. Commissioner of Pub. Safety, 401 N.W.2d 454,
456 (Minn. App. 1987). This court applies a clear-error standard of review to a district
court’s factual finding as to whether a refusal was reasonable. See id.
The district court rejected Henry’s argument by reasoning that he did not have a
right to wait for a particular attorney to return his call before deciding whether to submit
to chemical testing. The district court also noted that Henry’s limited right to counsel
previously had been vindicated. The district court is correct that Henry was obligated to
make a decision without further delay. See Linde, 586 N.W.2d at 810. There is no legal
authority to support Henry’s argument that it was reasonable for him to persist in declining
to answer the deputy’s question whether he would submit to chemical testing. See id.
(concluding that driver did not reasonably refuse to submit to blood or urine test because
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he was offended by circumstances of his arrest and was confused); Palbicki, 347 N.W.2d
at 514 (concluding that driver did not reasonably refuse to submit to blood test because he
questioned nurse’s credentials). Furthermore, there is nothing in the record to suggest that
Henry was either misled or confused by Deputy Eisenschenk. See Frost, 401 N.W.2d at
456. Deputy Eisenschenk patiently read and reread the implied-consent advisory to Henry
numerous times.
Thus, the district court did not err by finding that Henry’s refusal was not
reasonable.
Before concluding, we note that Henry briefed an additional argument that has been
waived. Henry argued in his brief, which was filed in April 2016, that the test-refusal
statute is unconstitutional. Two months later, the United States Supreme Court issued its
opinion in Birchfield v. North Dakota, 136 S. Ct. 2160 (2016). At oral argument in
September 2016, Henry’s attorney stated that he was abandoning the constitutional
challenge to the test-refusal statute. Therefore, we need not consider that issue.
In sum, the district court did not err by denying Henry’s petition and sustaining the
revocation of his driver’s license.
Affirmed.
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