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State v. Wessing

Court of Appeals of Minnesota

July 15, 2013

State of Minnesota, Respondent,
v.
Jenna Lee Wessing, Appellant.

UNPUBLISHED OPINION

Olmsted County District Court File No. 55-CR-12-882

Lori Swanson, Attorney General, St. Paul, Minnesota; and Mark A. Ostrem, Olmsted County Attorney, James P. Spencer, Assistant County Attorney, Rochester, Minnesota (for respondent)

David W. Merchant, Chief Appellate Public Defender, Richard Schmitz, Assistant Public Defender, St. Paul, Minnesota (for appellant)

Considered and decided by Hudson, Presiding Judge; Schellhas, Judge; and Bjorkman, Judge.

BJORKMAN, Judge

Appellant challenges her conviction of gross-misdemeanor driving while impaired (DWI), arguing that the district court erred by denying her motion to suppress evidence of her alcohol concentration. We affirm.

FACTS

In the early morning of December 24, 2011, appellant Jenna Wessing lost control of her vehicle, which rolled over and crashed. When Minnesota State Patrol Trooper Steven Willert responded to the accident scene at approximately 2:45 a.m., paramedics were actively tending to Wessing, so he was unable to speak with her. Passenger J.K. told Trooper Willert that he and Wessing had been at a bar and she had been drinking, but he was unsure how much. Wessing was airlifted to a hospital, and Trooper Willert followed to seek a blood or urine sample for alcohol testing.

Upon arriving at the hospital, Trooper Willert learned that Wessing was getting a CT scan and would subsequently be admitted to the hospital. Trooper Willert waited for the doctors to finish the scan, then received permission to speak with her while the doctors reviewed the results. When Trooper Willert entered the CT area, Wessing was lying on the CT board. She had intravenous tubes attached to her and an oxygen mask over her face, and her eyes were swollen shut. Trooper Willert questioned Wessing, and she responded, but it was difficult for Trooper Willert to discern whether Wessing understood him. He also had difficulty understanding her responses through the oxygen mask and had to ask her to repeat herself several times.

At approximately 4:07 a.m., Trooper Willert asked Wessing how much she had to drink that night, and she responded, "Enough." He then read Wessing the implied-consent advisory and asked if she wanted to speak with an attorney. Wessing responded affirmatively. However, Trooper Willert believed that Wessing's medical condition would prevent her from using a phone book or a phone, neither of which was in the CT area, and that time constraints requiring testing within two hours of driving also made it difficult for her to consult with an attorney. Trooper Willert advised Wessing of these concerns and informed her that he believed it was impractical for her to speak with an attorney under the circumstances; she did not respond. Trooper Willert then asked Wessing if she would be willing to provide a urine sample. She agreed, and Trooper Willert obtained a urine sample from her catheter bag at 4:12 a.m. Scientific testing indicated an alcohol concentration of .13.

Wessing was charged with two counts of gross misdemeanor DWI (driving under the influence of alcohol and driving with an alcohol concentration above .08 within two hours). She moved to suppress the evidence of her alcohol concentration, arguing that Trooper Willert obtained the urine sample in violation of her right to counsel. The district court denied the motion and, after a stipulated-facts trial, found Wessing guilty as charged. The district court stayed imposition of sentence and placed Wessing on probation. This appeal follows.

DECISION

Under the Minnesota Constitution, a driver has a limited right to obtain legal counsel before deciding whether to submit to chemical testing. Nelson v. Comm'r of Pub. Safety, 779 N.W.2d 571, 573-74 (Minn.App. 2010). The determination of whether an officer vindicated a driver's right to counsel is a mixed question of fact and law. Groe v. Comm'r of Pub. Safety, 615 N.W.2d 837, 841 (Minn.App. 2000), review denied (Minn. Sept. 13, 2000). We review the district court's factual findings for clear error. State v. Ortega, 770 N.W.2d 145, 149 (Minn. ...


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