Failure of Lower Sioux to Have Requisite Liability Insurance Limits Deprive Lower Sioux Officer of Authority to Demand Breath Testing.

State v. Hester, Minn.S.Ct., 4/27/2011.  A Lower Sioux police officer arrested Mr. Hester on suspicion of driving under the influence.  The officer took Mr. Hester to jail where he asked him to submit to further testing.  Mr. Hester refused.  The state charged Mr. Hester with test refusal and a jury convicted him of that offense.

Mr. Hester filed a motion for a new trial.  He argued that he had not committed a crime when he refused the officer’s request for further testing because the officer did not have the authority under state law to require him to submit to testing.  Mr. Hester said that there were two reasons why the officer lacked this authority.  He said:

that the Lower Sioux police officer who arrested him did not qualify as a “peace officer” because Lower Sioux police officers are not specifically listed in the definition of “peace officer” in Minn. Stat. § 169A.03, subd. 18. He also argues that the Lower Sioux police officer who arrested him did not have the authority to request that he submit to a chemical test because the Lower Sioux did not satisfy the liability insurance requirements of section 626.91, subdivision 2.

First claim:  There are two statutes in play.  Minn.Stat. 169A.03, Subd 18 says that a “peace officer” includes a police officer of any county.  The other statute, Minn.Stat. 626.91, says that the Lower Sioux has the powers of a law enforcement agency if the requirements in subdivision 2(a) of that statute are met.  In that case, Lower Sioux officers have the same authority as officers appointed by the county sheriff.  So, a Lower Sioux officer is a “peace officer”.

Second claim:  Subdivision 2(a)(2) of 626.91 requires that the Lower Sioux file a bond or certificate of insurance for liability coverage in specified amounts.  The Lower Sioux had liability insurance at the time of Mr. Hester’s arrest, but the limits did not coincide with the required amounts.  The state argued that “close enough for government work” should be the test but the appellate court rejects this test.  Rather, the controlling distinction is between failure to comply with a technical provision of a statute versus failure to comply with the substance of that statute.  The Lower Sioux didn’t have the correct amount of insurance coverage, which is not a technical violation.  As a consequence the officer had no authority to require Mr. Hester to submit to testing.