The Court of Appeals of Minnesota has issued a new DWI opinion surrounding the revocation of the petitioner's drivers' license.
The case, issued on 6.30.09 is Gowan v. Commissioner of Public Safety. The option is, at least at this point, unpublished, but will give the reader a good idea of the issues surrounding both breath test refusals and how the Minnesota DWI Intoxilyzer source code issue relates to refusals.
Some relevant facts:
While providing a second breath sample, McGowan again puffed out her cheeks and blew improperly through the mouthpiece. The trooper warned McGowan that she had four minutes to provide the second sample and that failure to do so would be considered refusal to take the test. McGowan had a puff count of 16 during the second sample and provided only .14 liters of air. Because the sample was deficient, the trooper concluded that McGowan had refused to take the breath test.
Based on her test refusal, the commissioner revoked McGowan's driver's license. In March 2007, McGowan filed a petition to rescind the revocation. She brought a discovery motion to obtain the source code of the Intoxilyzer 5000EN breath-test machine. In July 2008, the district court denied the discovery motion and sustained the revocation of McGowan's driver's license. McGowan appeals.
An interesting argument:
McGowan argues that she was denied due process because the state trooper did not attempt to test her alcohol concentration by another means, such as a blood or urine test. Pursuant to the implied-consent statute, an officer "may direct whether the test is of blood, breath, or urine," and a person who refuses a blood or urine test must be offered an alternative test, but if an officer asks a person to submit to a breath test, the person does not have a right to an alternative test. Minn.Stat. § 169A.51, subd. 3 (2006).
And what the court had to say about it:
This case is indistinguishable from Netland. McGowan is deemed to have been "on notice" that a "failure to provide an adequate sample would lead to a test refusal charge." Id. at 209. Based on the district court's findings, McGowan intentionally did not provide a "consistent breath sample necessary to yield a valid sample." Id. There is no indication that McGowan was "having difficulty breathing or suffering from a medical condition that would hinder her ability to take the breath test." Id. The trooper's conduct does not "shock[ ] the conscience" because he "did not use force or injure [McGowan] when he did not administer another test." Id. at 210. That the trooper did not offer an alternative test after McGowan failed to generate a breath sample does not "rise[ ] to the level of a constitutional violation." Id.; see also Larivee, 656 N.W.2d at 232 (holding that officer did not violate due process rights by refusing to permit independent chemical test after defendant had refused police-administered test).
So to sum up, in Minnesota DWI cases, you the officer does not have to offer an alternative test if the person refuse his or her request for a breath test.
Given the unreliability of the Intoxilyzer machines used in Minnesota DWI arrests, this seems like a horrible spot to be in. If you don't take a test that might falsely say you are guilty, you forfeit the chance to try to get an independent test to prove your innocence. Gottal love the justice system sometimes.
Here are some related articles:
Minnesota DUI Update: Implied Consent
