Saturday, January 1, 2011

DUI Statute Does Not Require a Verbal Refusal; Circumstantial Evidence Can Support a Finding of Refusal.

State v. Ferrier, Minn.Ct.App., 12/21/2010.  An Eagan police sergeant arrested Ms. Ferrier for driving while impaired.  The sergeant administered a preliminary breath test which showed that Ms. Ferrier had an alcohol concentration of .184.  Back at the station, Ms. Ferrier agreed to take a urine test.  Over the next four hours Ms. Ferrier gulped as many as fifteen glasses of water but she still couldn’t pee in the cup.  The sergeant called it a night and charged Ms. Ferrier with test refusal.

So, did Ms. Ferrier “refuse to submit to a chemical test” within the meaning of Minn.Stat. 169A.20, subd. 2?  This turns out to be a question of law and not of urology anxiety.  Ms. Ferrier said that she was “willing but unable” to perform and that under those circumstances only a verbal refusal from her amounted to “refuse to submit to a chemical test.”  The appellate court says, no, there is no such requirement in the statute or in prior opinions.  Circumstantial evidence may suffice.

What’s a “refusal”?  It is, at least, “any indication of actual unwillingness to participate in the testing process, as determined from the driver’s words and actions in light of the totality of the circumstances.”  Ms. Ferrier chose a urine test over a blood test, which the appellate court said “presupposed her ability to provide a sample.”  The officers gave her all that water; they apparently cracked jokes with her in an effort to “lighten the mood so that [Ms. Ferrier] would not be impeded by nervousness.”  The officers warned her on the last trip to the potty that if the cup remained dry it would be scored as a refusal.  Ms. Ferrier never said that she was physically incapable of urinating and she never asked for the needle. 

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