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03/30/92 MICHELLE MARIE SOMMERS v. COMMISSIONER

March 30, 1992

MICHELLE MARIE SOMMERS, PETITIONER, RESPONDENT,
v.
COMMISSIONER OF PUBLIC SAFETY, APPELLANT.



Appeal from District Court, Hennepin County; Hon. Mary D. Winter, Judge. District Court IC469985

Considered and decided by Amundson, Presiding Judge, Norton, Judge, and Peterson, Judge.

The opinion of the court was delivered by: Peterson

The revised implied consent advisory properly informed the driver about rights under the implied consent law, as interpreted by the supreme court in McDonnell v. Commissioner of Pub. Safety,473 N.W.2d 848 (Minn. 1991) and Friedman v. Commissioner of Pub. Safety, 473 N.W.2d 828 (Minn. 1991).

PETERSON, Judge

Respondent's driver's license was revoked after she failed an alcohol concentration test. She petitioned for judicial review. The trial court ordered the revocation rescinded, and the Commissioner of Public Safety appeals. We reverse.

FACTS

On June 13, 1991, Trooper Todd J. Waxberg arrested respondent for DWI. He read her the implied consent advisory, which stated in paragraph three: "Whether you take or refuse the test, you may still be subject to criminal prosecution for an alcohol or controlled substance related offense." The trooper asked respondent if she wished to consult with an attorney and she declined. He offered her a breath test, which she agreed to take. The test results showed an alcohol concentration of .15. Respondent's driver's license was revoked pursuant to the implied consent law, and she petitioned for judicial review.

A hearing was held. Respondent testified she thought paragraph three meant she could face more serious consequences or be accused of something else if she did not take the test, but on cross-examination agreed it meant, if she refused testing, she could still be prosecuted for DWI. The trial court determined that the advisory misinformed respondent, violating her due process rights. It also found that the order of the statements in the advisory was misleading because the information about the right to counsel was provided last. It ruled this could lead persons arrested for drunk driving to the conclusion that they could be in more trouble by asserting the right ...


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