Nash v. Comm'r of Pub. Safety

Michelle A. Larkin, Judge

Hennepin County District Court File No. 27-CV-19-19132

Considered and decided by Bjorkman, Presiding Judge; Larkin, Judge; and Frisch, Judge.

ORDER OPINION

Michelle A. Larkin, Judge

BASED ON THE FILE, RECORD, AND PROCEEDINGS, AND BECAUSE:

1. On remand from the supreme court, we consider the issues that were not decided when this court reversed the district court's order sustaining the revocation of appellant Brian Matthew Nash's driver's license. See Nash v. Comm'r of Pub. Safety, 4 N.W.3d 812, 821 (Minn. 2024). The parties have submitted supplemental briefs.

2. On July 28, 2019, Nash was arrested for driving while impaired by a controlled substance. The trooper who arrested Nash applied for a search warrant authorizing a blood or urine sample and told Nash that "she had applied for a warrant for a blood test and 'refusal to take a test is a crime.'" Id. at 814. Nash submitted to a blood test, which revealed the presence of methadone, for which he had a prescription. Id. at 814-15. The commissioner revoked Nash's driving privileges, and he petitioned the district court for judicial review of the license revocation. The district court sustained the revocation.

3. Nash appealed, asserting that: (1) the trooper's failure to inform him that "refusal to submit to a blood or urine test is a crime" was improper because it did not comply with the language in Minn. Stat. § 171.177, subd. 1 (2018), and violated his due-process rights and right to counsel; (2) the district court abused its discretion by admitting the trooper's testimony regarding Nash's indicia of drug impairment; and (3) the district court erred by rejecting his prescription-drug defense.

4. Section 171.177, subdivision 1, requires that "[a]t the time a blood or urine test is directed pursuant to a search warrant . . . the person must be informed that refusal to submit to a blood or urine test is a crime." As to the search-warrant advisory in this case, we concluded that, because the advisory the trooper gave Nash "deviated from the language" of section 171.177, subdivision 1, "misstated the law, and was misleading," it could not be the basis for Nash's license revocation. Nash v. Comm'r of Pub. Safety, 989 N.W.2d 705, 711 (Minn.App. 2023), rev'd, 4 N.W.3d 812 (Minn. 2024). We did not consider Nash's remaining arguments because the first issue was dispositive. Id. at 707.

5. The supreme court reversed, holding that the trooper's "statement that 'refusal to take a test is a crime' satisfies the advisory required by section 171.177, subdivision 1," and remanded to this court "to consider the other issues that Nash raised in his appeal." Nash, 4 N.W.3d at 821.

6. We first consider whether the trooper's search-warrant advisory violated Nash's due-process rights. The question of "[w]hether an implied-consent advisory violates a driver's due-process rights is a question of law, which this court reviews de novo." Magnuson v. Comm'r of Pub. Safety, 703 N.W.2d 557, 561 (Minn.App. 2005). In McDonnell v. Commissioner of Pub. Safety, the supreme court recognized that it is a violation of the constitutional guarantee of due process to misinform a driver that she could be subject to criminal penalties that the state is not authorized to impose. 473 N.W.2d 848, 855 (Minn. 1991) (rescinding a license revocation because the advisory threatened a criminal charge the state was not authorized to bring, in violation of the constitutional guarantee of due process). Later, the supreme court clarified that a due-process violation does not exist solely because a driver has been misled. Johnson v. Comm'r of Pub. Safety, 911 N.W.2d 506, 508 (Minn. 2018). A due-process violation occurs when: "(1) the person whose license was revoked submitted to a breath, blood, or urine test; (2) the person prejudicially relied on the implied consent advisory in deciding to undergo testing; and (3) the implied consent advisory did not accurately inform the person of the legal consequences" of a test refusal. Id. at 508-09.

7. The trooper's advisory in this case was an accurate statement of the law and not misleading because it advised Nash that refusal to submit to a test is a crime. Nash, 4 N.W.3d at 817 (reasoning that, in the context of section 171.177, subdivision 1, "telling a driver that 'refusal to submit to a test is a crime' is the same as saying 'refusal to submit to a blood or urine test is a crime'"). Because Nash cannot satisfy the third element of a McDonnell claim, he is not entitled to rescission of his license revocation under McDonnell. See Morehouse v. Comm'r of Pub. Safety, 911 N.W.2d 503, 505 n.4 (Minn. 2018) (noting it is unnecessary to decide whether the implied consent advisory was legally accurate because Morehouse did not show that he prejudicially relied on the advisory).

8. Next, we consider Nash's argument that the state violated his limited right to counsel. In State v. Rosenbush, the supreme court held that "the limited right to counsel under the Minnesota Constitution . . . does not apply when a driver is presented with the choice to submit-or not to submit-to a blood test pursuant to a search warrant." 931 N.W.2d 91, 99 (Minn. 2019). Because Nash did not have a limited right to counsel before deciding whether to submit to a search warrant for his blood or urine, there could be no violation of that right.

9. Next, we consider Nash's argument that the district court abused its discretion by admitting the trooper's testimony regarding Nash's indicia of drug impairment. Nash argues that the district court abused its discretion because the trooper had not received drug-recognition training on methadone. Evidentiary rulings, including rulings on foundational reliability, are reviewed for an abuse of discretion. See State v. Ali, 855 N.W.2d 235, 249 (Minn. 2014); Goeb v. Tharaldson, 615 N.W.2d 800, 815 (Minn. 2000).

10. Nash relies on State v. Klawitter, in which the supreme court held that an officer's opinion testimony regarding drug impairment based on the officer's training in drug-recognition protocol, experience, and observations is generally admissible, as long as there is sufficient foundation for the opinion expressed, the state does not exaggerate the officer's credentials or suggest that the officer's opinion is entitled to greater weight, and the probative value of the evidence is not substantially outweighed by the danger of unfair prejudice. 518 N.W.2d 577, 578, 586 (Minn. 1994).

11. The commissioner notes that the issue in Klawitter was whether drug-recognition testimony is admissible in a criminal trial on a charge of driving while impaired, and not whether such testimony is required to prove such an offense. See id. at 578 ("Given proper foundation and subject to other qualifications, opinion testimony by experienced police officer trained in use of so-called drug recognition protocol is generally admissible in evidence in a trial of a defendant for driving while under the influence of a controlled substance."). The district court was not persuaded that Klawitter required exclusion of the drug-recognition testimony in this case, reasoning that "law enforcement officials who routinely see people who are impaired from both drugs and alcohol are in a unique position to be able to formulate sufficient foundation from their experience to satisfy any foundation requirements." That reasoning is consistent with Klawitter:

In general it seems to us misleading for the state to present the officer as a "Drug Recognition Expert." That appellation suggests that there is something scientific about the officer's testimony, thus requiring the court to determine whether the scientific underpinnings of the testimony are adequately accepted in scientific circles. We are of the opinion, however, that the protocol in question does not demand the kind of scrutiny required for the presentation of some novel scientific discovery or technique.

Id. at 585.

12. Here, the trooper testified that she had one full week of training on drivingwhile-impaired (DWI) infractions, standardized field sobriety tests, and what to look for in impaired drivers during the police academy, followed by 17 weeks shadowing a senior trooper conducting DWI stops, which included specific training on identifying impairment by controlled substances. As to her experience, the trooper testified that she had performed about 30 DWI arrests per year during her five years as a trooper. The trooper's training and experience provided adequate foundation for her testimony regarding Nash's indicia of impairment, and the district court did not abuse its discretion by admitting that testimony at the implied-consent hearing.

13. Finally, we consider Nash's argument that the district court erred by rejecting his prescription-drug defense. Under Minn. Stat. § 171.177, subd. 12(h) (2018):

It is an affirmative defense to the presence of a Schedule I or II controlled substance that the person used the controlled substance according to the terms of a prescription issued for the person . . . unless the court finds by a preponderance of the evidence that the use of the controlled substance impaired the person's ability to operate a motor vehicle.

Methadone is a schedule II substance. Minn. Stat. § 152.02, subd. 3(c)(16) (2018). "We give great deference to a district court's findings of fact and will not set them aside unless clearly erroneous." State v. Andersen, 784 N.W.2d 320, 334 (Minn. 2010). "Findings of fact are clearly erroneous if, on the entire evidence, we are left with the definite and firm conviction that a mistake occurred." Id.

14. Nash argues that the signs of impairment observed by the trooper were not those usually seen in someone impaired by a narcotic analgesic like methadone. The district court acknowledged Nash's argument that "the general indicators of a narcotic analgesic" did not match the indica of impairment that he exhibited, but the court also noted that Nash showed "several of the indicators," such as constricted pupils, lethargy, and thick tongue, which indicated a dry mouth, and that those indicators "could explain his failure to keep his vehicle within his lane on the roadway." Nash also argues that the time of day and his statements to the arresting officer that he was sober, tired, and weaving because he was looking at directions all weigh against a finding that he was impaired by methadone.

15. "When the record reasonably supports the findings at issue on appeal, it is immaterial that the record might also provide a reasonable basis for inferences and findings to the contrary." In re Civ. Commitment of Kenney, 963 N.W.2d 214, 223 (Minn. 2021) (quotation omitted). When applying the clear-error standard of review, appellate courts (1) view the evidence in the light most favorable to the findings, (2) do not reweigh the evidence, (3) do not find their own facts, and (4) do not reconcile conflicting evidence. Id. at 221-22. Applying those standards, we are not left with a definite and firm conviction that the district court clearly erred in finding that Nash was impaired by methadone.

IT IS HEREBY ORDERED:

1. The district court's order is affirmed.

2. Pursuant to Minn. R. Civ. App. P. 136.01, subd. 1(c), this order opinion is nonprecedential, except as law of the case, res judicata, or collateral estoppel.