How Not to Use a Snow Plow

Mell v. Commissioner of Public Safety, Mn.Ct.App. 11/25/2008.

Kevin Swanson called the sheriff’s office to report that Scott Mell was ramming Swanson’s vehicle with a pickup truck with a plow on it. This occurred out on a frozen East Rush Lake, near the Flckaberds Resort. The deputies followed a pickup truck from the resort to Mell’s driveway. This pickup did not have a plow on it. The pickup truck that was in Mell’s garage did have a plow on it, however. The deputies arrested Mell anyway, on assault charges. Although the deputies detected alcohol on Mell’s breath, they did not think he was intoxicated, and they did not perform any sobriety tests.

That task fell to the local jail, which required all arriving guests to submit to a preliminary breath test. Mell’s test results, which the jail passed along to the arresting deputies, were 0.146. The arresting deputies then decided that Mell had been driving the pickup without the plow while intoxicated, and so they read him the implied consent advisory; they also made a phone available to Mell, who was, nonetheless, unable to reach an attorney at two in the morning. Public Safety eventually revoked Mell’s license, and he sought review of that revocation.

The appellate court found that there was probable cause to arrest Mell on assault charge. The court based this determination on Swanson’s account of the assault, which included the claim that he saw Mell driving the pickup truck with the plow on it. The deputies’ discovery of a pickup truck with a plow on it in Mell’s garage was enough additional information to support probable cause.

The court also held that the jail’s administration of the PBT was permissible under the statute, Minn.Stat. § 169A.41, relying on an earlier Opinion, State v. Laducer, 676 N.W.2d 693 (Minn.Ct.App. 2004). The jail’s administration of the test was also not a violation of either the federal or state constitution. The jail’s interest in screening a person being jail outweighed the rather diminished privacy interest of the person being jailed.

Finally, the court rejected Mell’s claim that his Friedman right to counsel had been violated.