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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