The defendant was arrested on January 7, 2006, for DWI. At the station house she was read the Minnesota Implied Consent Advisory. She invoker her right to counsel. Counsel advised her that, "Whatever you do, do not refuse the test. It’s way worse than coming up with a positive.”
She subsequently agreed to submit to a breath test. An audio recording of Netland’s Intoxilyzer test was a focal point of the trial. The officer instructed Netland to blow into the Intoxilyzer and told her that she would hear a tone once she started. He also told Netland that she “need[ed] to keep the tone going.” According to the printout of test results, Netland made 19 attempts in fewer than three minutes and 30 seconds before the officer terminated the test, and informed Netland that he considered her performance a refusal to submit to testing.
Netland insisted that she was not refusing and asked that she be allowed to submit to a blood or urine test. The officer refused her request. Netland, however, hired an independent tester to obtain and analyze a urine sample that she submitted, which subsequently measured her alcohol concentration to be 0.036.
A jury acquitted Netland of the DWI charge, but found her guilty of refusing to submit to the Intoxilyzer test.
Several issues were raised on appeal: (1) that section 169A.20, subdivision 2, is unconstitutional on its face because it requires a surrender of the Fourth Amendment protection against unreasonable searches and seizures as a condition of driving in Minnesota; and (2) that constitutional due-process guarantees of fundamental fairness prohibit convicting Netland of “refusing” to submit to a chemical test that she was attempting to take and seeking an alternative means of administration. Although we reject Netland’s facial challenge to the statute, a thorough review of the record convinces us that Netland was denied the guarantees of procedural due process.
Regarding the challenge to the statute as unconstitutional on its face, the court held the implied-consent law does not require a driver to surrender the right to be free from unreasonable searches because the officer must have probable cause to require testing, and because exigent circumstances necessitate a warrantless search to prevent evidence of the driver’s intoxication from imminent destruction by physiological processes.
Regarding, the appeal on this issue of whether it was "fundamentally unfair to convict her of test refusal when she was imploring the officer for an opportunity to take an alternative test" the court reversed and held:
The failure to offer an alternate test under the totality of circumstances present here deprived Netland of the opportunity to make this choice freely, which fundamental fairness requires. The alternate test requested by Netland would have facilitated the purpose of section 169A.20, subdivision 2, namely, to provide the state with scientific evidence of the amount of alcohol in the driver’s body. Because Netland was not given a meaningful opportunity to demonstrate her willingness to submit to chemical testing, we hold that Netland’s conviction was obtained in violation of due process.
The court emphasized several key facts to support the conclusion. First, Officer Hagen deemed Netland to have refused after approximately three minutes and 30 seconds. Both expert testimony and our prior implied-consent decisions acknowledge that the four-minute requirement is programmed into the Intoxilyzer so that the subject will have a sufficient opportunity to provide a reliable sample for analysis. E.g., Genia v. Comm’r of Pub. Safety, 382 N.W.2d 284, 286 (Minn. App. 1986). Second, Netland never refused to submit to the breath test. She asked to be allowed another chance to perform the breath test, and in the alternative asked to be allowed to submit to either a blood or uring test. Additionally, Netland secured and submitted to a urine test at her own expense. This was further evidence of her willingness to submit to testing and rebutted the officer's contention that she was “playing games”.
How the court weighed these individual factors is unclear. However, the court determined under the totality of circumstances that: When the evidence of a driver’s refusal to submit to chemical testing is ambiguous and based primarily on an Intoxilyzer machine’s determination of a failure to provide an adequate breath sample, rather than the driver’s unwillingness to be tested, and the driver insists that she is not refusing and asks for an alternative test, which the officer declines to provide, a conviction of driving while impaired for refusal to submit to a chemical test is contrary to fundamental fairness and deprives the driver of due process of law.
