Test Refussal

I live in MN, I was pulled over after working at a local bar in small town. I had worked a 20 hour day, 2 jobs. I had a beer after work but did not feel that I was over the limit. I am going through with a breakup with the father of my child, a police officer works security with my ex during the day at the local school. This same (small town MN 1,000 pop.) pulled me over along with 3 other squads and 5 officers who watched me do field tests and outright laughed at me. When I got to the sheriff's dept. I was so angry that I refused to test. It was not explained to me that I would automatically lose my license for one year. I asked how long and was told 1 year after I refused the test. At that point, within 10 min, I asked to then take the test to prove my innocence and was told no, that I had been given an opportunity and denied it and would not be given another. Is this legal?

Though excessive and maybe even unreasonable, it isn't illegal. You were given an opportunity to take the breathalyzer and refused.

And though I have no reason to doubt the completeness of your version, a St Paul police officer (Officer Glenn Norstrem, 24 yr veteran, St. Paul Police Dept.) tells a little different version of the standard procedure for the breath test:
"If the driver fails any of the tests, they are then taken to headquarters where they are read the “Implied consent advisory.” This is a form that reminds them that the State of Minnesota requires a driver to submit to a test to determine their degree of intoxication. If they refuse to take a test, they lose the driving privileges for a year, can be charged with refusing to test and can still be charged with DUI. They are then asked to make a decision as to whether they will submit to a breath test. The drivers are asked if they want to contact an attorney to help them make the decision and a phonebook and telephone are made available to them. The final decision, is ultimately theirs."

So, the following questions become obvious:
1) Where you given a copy of the "Implied Consent Advisory" before you refused the test?
2) Were you aware BEFORE your rejection that your license would be automatically suspended?
3) Were you advised that you could contact an attorney before making your decision?

I was given a copy of the consent advisory form. It states that refusing to test is a crime and punishable by law. The form DOES NOT SAY THAT YOUR LICENSE WILL BE REVOKED AND/OR FOR HOW LONG. It does not say anywhere on the form that you will automatically lose your license for one year. The state statute governing these tests state that you should "be informed of the consequenses" before testing, however this consent form does not spell out the consequenses and/or even mention them other than that it is a crime & punishable by law. I have a copy of my form, it dosen't state the "actual" consequenses. Does this blanket statement qualify for informing me of the consequenses of test refusal?

It does give you the opportunity to consult with a lawyer. It was 3:00 a.m. I don't know a lawyer to contact at that time. Do they provide you with one if you don't know one?

TerriB said:

I live in MN, I was pulled over after working at a local bar in small town. I had worked a 20 hour day, 2 jobs. I had a beer after work but did not feel that I was over the limit. I am going through with a breakup with the father of my child, a police officer works security with my ex during the day at the local school. This same (small town MN 1,000 pop.) pulled me over along with 3 other squads and 5 officers who watched me do field tests and outright laughed at me. When I got to the sheriff's dept. I was so angry that I refused to test. It was not explained to me that I would automatically lose my license for one year. I asked how long and was told 1 year after I refused the test. At that point, within 10 min, I asked to then take the test to prove my innocence and was told no, that I had been given an opportunity and denied it and would not be given another. Is this legal?

Click to expand...

My response:

Well, here's the problem - - Have you ever heard of the old maxim, "Ignorance of the law is not an excuse or a defense" ? Well, it's true. You see, when you first applied for your driver license "privilege" (not a "right"), you signed a statement that you are familiar with all vehicle code laws, and would obey them as they existed at the time, and as they are amended, added, or otherwise.

So, the theory is that you already knew, or should and could have known, about the following law, and you knew, or should and could have known, that your license would be suspended pursuant to your fact situation. There is no requirement that requires an officer of the law to "remind" you of that which you knew, or should and could have known. There is a presumption that when you signed your license application, and the DMV granted your "privilege" to drive, that you already knew of the consequences of your actions; i.e., having your license revoked for one year.

YOU VIOLATED - -

Minnesota Statute 169A.52

Test refusal or failure; license revocation.

Subdivision 1. Test refusal. If a person refuses to permit a test, then a test must not be given, but the peace officer shall report the refusal to the commissioner and the authority having responsibility for prosecution of impaired driving offenses for the jurisdiction in which the acts occurred. However, if a peace officer has probable cause to believe that the person has violated section 609.21 (criminal vehicular homicide and injury), a test may be required and obtained despite the person's refusal. A refusal to submit to an alcohol concentration test does not constitute a violation of section 609.50 (obstructing legal process), unless the refusal was accompanied by force or violence or the threat of force or violence.

Subd. 2. Reporting test failure. If a person submits to a test, the results of that test must be reported to the commissioner and to the authority having responsibility for prosecution of impaired driving offenses for the jurisdiction in which the acts occurred, if the test results indicate:

(1) an alcohol concentration of 0.10 or more;

(2) an alcohol concentration of 0.04 or more, if the person was driving, operating, or in physical control of a commercial motor vehicle at the time of the violation; or

(3) the presence of a controlled substance listed in schedule I or II, other than marijuana or tetrahydrocannabinols.

Subd. 3. Test refusal; license revocation. (a) Upon certification by the peace officer that there existed probable cause to believe the person had been driving, operating, or in physical control of a motor vehicle in violation of section 169A.20 (driving while impaired), and that the person refused to submit to a test, the commissioner shall revoke the person's license or permit to drive, or nonresident operating privilege, for a period of one year even if a test was obtained pursuant to this section after the person refused to submit to testing.

(b) Upon certification by the peace officer that there existed probable cause to believe the person had been driving, operating, or in physical control of a commercial motor vehicle with the presence of any alcohol in violation of section 169A.20 (driving while impaired), and that the person refused to submit to a test, the commissioner shall disqualify the person from operating a commercial motor vehicle for a period of one year
under section 171.165 (commercial driver's license disqualification) and shall revoke the person's license or permit to drive or nonresident operating privilege for a period
of one year.

Subd. 4. Test failure; license revocation. (a) Upon certification by the peace officer that there existed probable cause to believe the person had been driving, operating, or in
physical control of a motor vehicle in violation of section 169A.20 (driving while impaired) and that the person submitted to a test and the test results indicate an alcohol concentration of 0.10 or more or the presence of a controlled substance listed in schedule I or II, other than marijuana or tetrahydrocannabinols, then the commissioner shall revoke the person's license or permit to drive, or nonresident operating privilege:

(1) for a period of 90 days;

(2) if the person is under the age of 21 years, for a period of six months;

(3) for a person with a qualified prior impaired driving incident within the past ten years, for a period of 180 days; or

(4) if the test results indicate an alcohol concentration of 0.20 or more, for twice the applicable period in clauses (1) to (3).

(b) On certification by the peace officer that there existed probable cause to believe the person had been driving, operating, or in physical control of a commercial motor vehicle
with any presence of alcohol and that the person submitted to a test and the test results indicated an alcohol concentration of 0.04 or more, the commissioner shall disqualify the person from operating a commercial motor vehicle under section 171.165 (commercial driver's license disqualification).

Subd. 5. Unlicensed drivers; license issuance denial. If the person is a resident without a license or permit to operate a motor vehicle in this state, the commissioner shall deny to the person the issuance of a license or permit after the date of the alleged violation for the same period as provided in this section for revocation, subject to review as provided in section 169A.53 (administrative and judicial review of license revocation).

IAAL