Ramsey County District Court File No. 62SU-CR-11-1722
Lori Swanson, Attorney General, St. Paul, Minnesota; and Thomas R. Hughes, Hughes & Costello, St. Paul, Minnesota (for respondent)
John L. Fossum, Fossum Law Office, LLC, Northfield, Minnesota (for appellant)
Considered and decided by Cleary, Presiding Judge; Hooten, Judge; and Huspeni, Judge. [*]
Appellant challenges her conviction of refusal to submit to chemical testing in violation of Minn. Stat. § 169A.20, subd. 2 (2010), arguing that the district court committed plain error when it improperly instructed the jury, that she received ineffective assistance of counsel, and that the district court erred by denying a hearing on her petition for postconviction relief. We affirm.
Around 8:45 p.m. on May 14, 2011, a New Brighton police officer was parked in a lot parallel to 7th Street in New Brighton. The officer observed a vehicle traveling westbound on 7th Street that he believed was going faster than the posted 30-mile-per-hour limit. He began to follow the vehicle and observed that both of the vehicle's left tires were entirely across the center lane divider. Using a radar unit, the officer determined that the vehicle was traveling 38 miles per hour. The officer followed the car along 7th Street and noticed that the vehicle continued to drive with its left tires over the center divider for approximately six blocks. The vehicle then made a left turn onto Inca Lane. The officer followed the vehicle, activated his emergency lights, and stopped the vehicle.
The officer identified the driver of the vehicle as appellant Theresa Anderson-Chapman. During his initial conversation with appellant, the officer observed that she appeared very jittery, paranoid, antsy, and "more nervous than an average person typically would be." He asked appellant to take a preliminary breath test (PBT) and she agreed. Before administering the test, he looked in appellant's mouth to make sure there were no foreign objects in it and noticed that she had heat bumps on the back of her tongue consistent with drug use. The result of the PBT was zero, indicating that appellant did not have any alcohol in her system.
The officer administered three different field sobriety tests: the horizontal gaze nystagmus (HGN), the walk-and-turn test, and the leg-stand test. Based on those tests and the officer's other observations, he determined that appellant was under the influence of a drug and arrested her. After transporting appellant back to the police department, the officer read her the implied-consent advisory and gave her time to contact an attorney. The officer then asked appellant to take a blood test, which she refused, or to take a urine test, which she also refused. Following her refusal, appellant was charged with second-degree test refusal and third-degree driving under the influence of a controlled substance.
At trial, the officer testified regarding the observations he made about appellant when he stopped her vehicle. He testified that he had "multiple trainings and instruction in field sobriety and to DWI detection, and also had lots of experience in processing DWIs." He also explained that he was a "drug recognition evaluator" (DRE) and that he recently completed a drug recognition course.
The officer noted that the purpose of administering the HGN was to observe any involuntary jerking of the eyes, and that he did not observe this in appellant. He did observe that appellant was swaying during the test and that she was unable to keep her head still. He testified that he had to remind her "multiple times" to keep her head still. The officer noted that "[s]omebody who is not under the influence should be able to follow the instructions like keeping their head still." He also testified that appellant failed the walk-and-turn test and the leg-stand test. Finally, he stated that as appellant exited her vehicle, he observed that the zipper on her pants was down and that her general appearance was disheveled.
Appellant also testified at trial, denying that she had crossed the center line on 7th Street. She explained that she had a pinched nerve in her neck and that the injury made her head shake "a little bit." She also testified that she fidgets when she is nervous. Appellant stated that she did not have any trouble getting out of her car the night of May 14 and that she does not have any balance problems. She explained that she was nervous during the sobriety tests because there were several police officers searching her vehicle. Finally, appellant testified that she refused the chemical test because she "didn't really trust this police officer. I really wanted to get ...