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State v. Larivee

January 30, 2003



Under the implied consent statute, Minn. Stat. § 169.123, subd. 3(a) (1998), a custodial suspect has the right to an independent blood-alcohol-level test only after first submitting to the police-administered blood-alcohol-level test.

Appellant's constitutional right to due process was not violated when the police denied the appellant the opportunity to obtain an independent blood-alcohol-level test after appellant had refused the police-administered blood-alcohol-level test.


Heard, considered, and decided by the court en banc.

The opinion of the court was delivered by: Gilbert, Justice

Concurring in part, dissenting in part, Meyer, J. and Blatz, C. J.


Appellant Michael Larivee was charged with driving under the influence of alcohol—child endangerment in violation of Minn. Stat § 169.121, subd. 1(a) and subd.á3(c)(4) (1998), refusal to submit to testing in violation of Minn. Stat. § 169.121, subd.á1a and subd. 3(c)(4) (1998), and failure to properly stop at a stop sign in violation of Minn. Stat. § 169.30 (1998). The district court ruled that by being denied access to an independent blood-alcohol test, the appellant's due process right to a fair trial was violated on the driving under the influence charge but not on the refusal to test charge. The district court also found that collateral estoppel prevented appellant from relitigating whether he refused to submit to testing in violation of Minn. Stat. § 169.123, subd. 2(b), because that precise issue was addressed in the implied consent hearing.

The district court certified the case to the court of appeals pursuant to Minn. R. Crim. P. 28.03, finding that the case presented an issue of constitutional dimension, which was an issue of first impression in this state, and had been decided differently by courts around the country. The case was then stayed pending resolution in Minnesota's appellate courts.

The district court in certifying the case failed to articulate the precise question to be resolved by the appellate courts. The court of appeals heard the case and construed the certified question to be "whether a defendant's rights to due process and a fair trial are violated when he is denied his request to obtain an independent blood-alcohol-level test after he first refuses to submit to the police-administered test." State v. Larivee, 644 N.W.2d 100, 104 (Minn. App. 2002). The court of appeals interpreted the statute to require submission to the police-administered test as a condition precedent to the right to obtain an independent test, found no merit on constitutional claims, and held that collateral estoppel did not apply here because the result in a civil proceeding cannot be used to bind a criminal defendant on any element of the crime. We affirm.

The incident that gave rise to the charges occurred at 3 p.m. on Friday, Novemberá17, 2000, when the appellant was picking up two children from the Jordan High School parking lot. A police officer stopped the appellant after he saw him make an excessively wide turn and disregard a stop sign. While speaking with appellant, the officer smelled the strong odor of alcohol on the appellant's breath, saw that his eyes were glassy and bloodshot, and noticed that his speech was slightly slurred. The appellant failed the field sobriety tests administered by the officer. When asked by the officer if he had been drinking, appellant admitted drinking a "half bottle" of wine during his 2 p.m. lunch. The officer then administered a portable breath test to appellant, which he failed. The officer read the Minnesota Implied Consent Advisory and the appellant asked to call an attorney. After talking to his attorney on the telephone from the police station, the appellant said, "Upon advice of my attorney, I don't feel like taking it." Then, reading from a note he had made stated, "However, I would request my own test from an individual outfit that would come out here to the jail station." Appellant was taken to the Scott County Jail. The arresting officer advised the jail staff that appellant had requested his own test, and left the jail believing the jail staff was providing the appellant a telephone.

While being booked, appellant again requested his own test. The booking sergeant, without conferring with anyone else, denied that request because he believed that "only a person who has completed a test at the arresting officer's request has the right to arrange for his own test." The district court took judicial notice of the fact that appellant's first opportunity to go before a Scott County judge for a bail hearing was the Monday following appellant's Friday afternoon arrest.


The district court certified this case to the court of appeals without formulating a precise legal question. A certified question "should be carefully and precisely framed so as to present distinctly and clearly the question of law involved." Thompson v. State, 284 Minn. 274, 277, 170 N.W.2d 101, 103 (1969). When the district court fails to properly frame the issues, the appellate court has the ...

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