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Sand v. Commissioner of Public Safety

Court of Appeals of Minnesota

August 19, 2013

Joseph M. Sand, Jr., petitioner, Appellant,
v.
Commissioner of Public Safety, Respondent.

UNPUBLISHED OPINION

Scott County District Court File No. 70-CV-12-10292

Charles A. Ramsay, Daniel J. Koewler, Ramsay Law Firm, P.L.L.P., Roseville, Minnesota (for appellant)

Lori Swanson, Attorney General, Joan M. Eichhorst, Assistant Attorney General, Natasha M. Karn, Assistant Attorney General, St. Paul, Minnesota (for respondent)

Considered and decided by Bjorkman, Presiding Judge; Ross, Judge; and Willis, Judge. [*]

ROSS, Judge

A state trooper arrested Joseph Sand for drunk driving and obtained a urine sample from Sand without first having him empty his bladder. The sample was tested, revealing Sand's alcohol concentration was 10 grams per 67 milliliters of urine, and the commissioner of public safety revoked his license to drive. In this appeal, Sand challenges the district court's decision to sustain the revocation. He argues that the implied-consent law is ambiguous and unconstitutionally void for vagueness for failing to define specific urine-testing procedures. He also contends that the implied-consent law unconstitutionally delegates legislative authority to administrative bodies and that the commissioner and the Bureau of Criminal Apprehension violated the Minnesota Administrative Procedures Act. Because Sand's ambiguity and constitutional arguments rest on the rejected theory that urine-alcohol concentration must correlate with blood-alcohol concentration in breath analyses, and because the testing procedure does not violate the administrative procedures act, we affirm.

FACTS

In April 2012, a state patrol officer arrested appellant Joseph Sand under suspicion of driving while impaired. Sand submitted to what has become known as "first-void urine testing, " or, alcohol-concentration testing that involves obtaining a urine sample without first having the tested individual empty his bladder. See State v. Edstrom, 792 N.W.2d 105, 108 (Minn.App. 2010). The test results indicated that Sand's alcohol concentration was 10 grams per 67 milliliters of urine, which exceeds the per se violation limit. See Minn. Stat. § 169A.20, subd. 1(5) (2012). The state charged Sand with driving while impaired and the commissioner of public safety revoked his driver's license.

Sand petitioned for judicial review of his license revocation. He argued that the results of his urine test should be suppressed or, in the alternative, that he is entitled to a Frye-Mack hearing. Sand added during the hearing on his motion that the testing statutes are ambiguous, unconstitutionally vague, and violate the Minnesota Administrative Procedures Act (APA). The commissioner moved to exclude expert testimony about the nature of urine testing, and the district court granted the motion but invited briefs addressing Sand's constitutional and APA arguments.

The district court sustained the revocation. It determined that Sand was not entitled to a Frye-Mack hearing and concluded that the implied-consent law is not ambiguous or void for vagueness for failure to specify whether first- or second-void testing should be used. The district court also concluded that the implied-consent law does not violate the APA because the department of public safety lawfully delegated certification of testing procedures to the BCA. Sand appeals.

DECISION

I

Sand contends that Minnesota Statutes section 169A.03, subdivision 2 (2012), renders the implied-consent law ambiguous and unconstitutionally vague by identifying three different alcohol-concentration ratios for a per se violation of the statute. The challenge raises questions of law, which we review de novo. See SooHoo v. Johnson, 731 N.W.2d 815, 821 (Minn. 2007) (constitutionality of a statute); Johnson v. Comm'r of Pub. ...


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