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State v. Mickalsen

Court of Appeals of Minnesota

December 30, 2013

State of Minnesota, Appellant,
v.
Sarah May Mickalsen, Respondent.

UNPUBLISHED OPINION

Dakota County District Court File No. 19AV-CR-12-12961.

Lori Swanson, Attorney General, St. Paul, Minnesota; and Alina Schwartz, Campbell Knutson, P.A., Eagan, Minnesota (for appellant)

Jeffrey B. Ring, Jeffrey B. Ring and Associates, Minneapolis, Minnesota (for respondent)

Considered and decided by Peterson, Presiding Judge; Halbrooks, Judge; and Ross, Judge.

ROSS, Judge

A police officer stopped a car driven by Sarah Mickalsen and administered a preliminary breath test, the results of which the officer refused to tell Mickalsen. The state appeals the district court's suppression of Mickalsen's later, post-arrest breath test result. It argues that the district court erred by determining that Mickalsen's right to counsel was not vindicated when the arresting officer refused to inform her of the exact result of the preliminary test. Because neither the defendant's federal constitutional right to obtain exculpatory evidence from the prosecutor before trial nor her state constitutional right to consult with counsel before submitting to a post-arrest breath test obligate police to disclose preliminary breath test results before requesting or administering the post-arrest breath test, we reverse.

FACTS

Officer Adam Stier noticed a car speeding and failing to signal a lane change after midnight on July 2, 2012. Officer Stier stopped the car. He smelled the odor of alcoholic beverages as he spoke with the driver, Sarah Mickalsen. The officer administered field sobriety tests and a preliminary breath test. The preliminary breath test indicated an alcohol concentration of 0.178. Officer Stier arrested Mickalsen and took her to the Lakeville police station.

Officer Stier read Mickalsen the implied consent advisory, and Mickalsen chose to exercise her right to counsel before deciding whether she would submit to the requested post-arrest breath test. Mickalsen called an attorney. During the call, Mickalsen asked Officer Stier for her preliminary breath test result. He told her merely, "It was under 0.20." After talking with her attorney for a few more minutes, Mickalsen asked the officer whether the result was above 0.16. Officer Stier refused to expand on his previous response, which he repeated. Mickalsen consented to a breath test that indicated an alcohol concentration of 0.17. The state charged Mickalsen with driving while intoxicated.

Mickalsen moved the district court to suppress the post-arrest breath test result because Officer Stier did not provide her with the preliminary breath test result while she spoke with her attorney. The district court granted the motion. The state appeals.

DECISION

The state challenges the district court's decision to suppress evidence of Mickalsen's post-arrest breath test. Before we can address the merits of an interlocutory appeal from a pretrial decision, however, we first must decide whether the state has shown that the evidence suppression critically impacts the overall prosecution. State v. Beall, 771 N.W.2d 41, 44 (Minn.App. 2009) (citing State v. Scott, 584 N.W.2d 412, 416 (Minn. 1998)). The district court's decision to suppress evidence of a chemical test result in a drunk driving case critically impacts the prosecution. See State v. Heaney, 676 N.W.2d 698, 704 (Minn.App. 2004), rev'd on other grounds, 689 N.W.2d 168 (Minn. 2004). We therefore turn to the merits of the state's challenge to the suppression decision, which we resolve de novo because the facts are undisputed. See State v. Othoudt, 482 N.W.2d 218, 221 (Minn. 1992).

We must next distill the argument presented to us. Mickalsen argued to the district court that, because this is a criminal case, Brady rights are implicated and the police officer's refusal to provide her with "exculpatory" evidence violated her constitutional rights. The argument persuaded the district court. But Mickalsen has since abandoned the Brady theory. She now argues that the Minnesota constitutional right to counsel required the officer to disclose her preliminary breath test result before she decided whether to submit to a post-arrest breath test. We will consider whether a police officer ...


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