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Otto v. Commissioner of Public Safety

Court of Appeals of Minnesota

March 25, 2019

Leland Melvin Otto, petitioner, Appellant,
v.
Commissioner of Public Safety, Respondent.

          Carver County District Court File No. 10-CV-17-1077

          Richard L. Swanson, Chaska, Minnesota (for appellant)

          Keith Ellison, Attorney General, William J. Young, Assistant Attorney General, St. Paul, Minnesota (for respondent)

          Considered and decided by Connolly, Presiding Judge; Bjorkman, Judge; and Florey, Judge.

         SYLLABUS

         There is no constitutional or statutory requirement for police officers to inform vehicle drivers that they may refuse to perform field sobriety tests.

          OPINION

          CONNOLLY, JUDGE.

         Appellant challenges the denial of his petition for the reinstatement of his driving privileges. Because appellant has not shown that his constitutional rights were violated by the deputy's failure to inform him that he could refuse to perform the field sobriety tests, and because the deputy did not err in expanding his traffic stop of appellant into a driving under the influence investigation or in arresting appellant for driving under the influence, we affirm.

         FACTS

         At 1:20 a.m. on a Saturday in November 2017, a deputy stopped a truck that he had observed drive outside the traffic lane and fail to signal 100 feet before turning. He also observed an equipment violation. The deputy approached the truck and identified the driver as appellant Leland Otto. The deputy saw that appellant's eyes were bloodshot and watery, heard that appellant's speech was slightly slurred, and smelled alcohol. When asked to produce his license, appellant attempted unsuccessfully to remove it from his wallet; he then gave the wallet to the deputy, who removed the license without difficulty. Appellant admitted to the deputy that he had drunk two or three beers.

         The deputy suspected that appellant was under the influence of alcohol, told appellant that he wanted to be sure appellant was "okay to continue driving" and asked appellant to get out of the truck to perform some field sobriety tests. Appellant told the deputy that, because of back surgery, he did not want to perform tests that involved movement, so the deputy administered three tests that did not involve movement.

         The first was the Horizontal Gaze Nystagmus (HGN) test. Appellant did not comply with the deputy's instruction to follow the tip of the deputy's finger with his eyes; the deputy noted this and terminated the test. The second test was counting backwards from 67 to 54; appellant performed the test, then voluntarily repeated it but stopped at 55, not 54. The third test involved finger dexterity; appellant focused only on his left hand and stopped the test before completing it.

         Based on the results of the tests, the deputy gave appellant a preliminary breath test (PBT). While waiting for the result, appellant told the deputy, "I'm out of here, I'm going home." The PBT sample appellant provided revealed an alcohol concentration of 0.096, and the deputy arrested him for driving under the influence (DUI). Appellant was given a breath test that produced a result of 0.09; as a result, his license was revoked.

         Appellant filed a petition to reinstate his driving privileges. Based on the deputy's testimony at the hearing on that petition, the district court made findings and ...


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