                          This opinion will be unpublished and
                          may not be cited except as provided by
                          Minn. Stat. § 480A.08, subd. 3 (2014).

                               STATE OF MINNESOTA
                               IN COURT OF APPEALS
                                     A14-0610

                             Kevin Jerome Simons, petitioner,
                                       Appellant,

                                             vs.

                              Commissioner of Public Safety,
                                     Respondent.

                                    Filed April 6, 2015
                                         Affirmed
                                      Hudson, Judge

                             Hennepin County District Court
                                File No. 27-CV-12-6341

Craig E. Cascarano, Joel R. Fink, Minneapolis, Minnesota (for appellant)

Lori Swanson, Attorney General, Jacob Fischmann, Assistant Attorney General, St. Paul,
Minnesota (for respondent)

       Considered and decided by Bjorkman, Presiding Judge; Hudson, Judge; and

Reyes, Judge.

                         UNPUBLISHED OPINION

HUDSON, Judge

       Appellant challenges the district court’s order sustaining the revocation of his

driver’s license under the implied-consent law, arguing that the district court clearly erred

by finding that he legally refused chemical testing. We affirm.
                                           FACTS

       The district court issued an order sustaining the administrative revocation of

appellant Kevin Jerome Simons’s driving privileges, finding that Simons had refused

chemical testing after being read the implied-consent advisory. At an evidentiary hearing

on the test-refusal issue, an Edina police officer testified that, on responding to a

disturbance in the Hennepin County Library parking lot, he found Simons seated in the

driver’s seat of a parked vehicle.         The officer believed that Simons, who was

argumentative, had been drinking. Simons declined field sobriety tests, and the officer

arrested him on suspicion of driving-while-impaired (DWI). Simons was transported to

the police booking facility, where the officer read him the implied-consent advisory.

Simons told the officer that he understood the advisory and first indicated that he wished

to speak with an attorney, but then changed his mind. When the officer asked whether

Simons would take a urine test, Simons asked about his options. The officer told him that

if he did not wish to take a urine test, he could take a blood test. The officer testified that

after about 15 minutes, with long periods of silence and staring, Simons eventually

agreed to take a urine test.

       Because the booking area was full, the officer asked Simons to wait in a cell while

the officer retrieved the container to collect a urine sample. But the officer testified that

when he returned, he discovered that Simons had urinated into the toilet in the cell and

“proceeded to smirk or smile” at the officer. Simons declined a blood test, and the officer

allowed him more time to provide a urine sample, but he was only able to provide a few

drops, so that the sampling powder in the cup remained dry. About one hour after the


                                              2
reading of the advisory, Simons again declined a blood test, stating that he believed he

had already taken a urine test. The officer then ended the testing process.

       The district court considered evidence of an audio recording of the administration

of the advisory, which stopped when Simons agreed to a urine test, but started again

when it became clear that he had not provided an adequate sample. The recording shows

that about an hour after the advisory was given, Simons told the officer, “If you want me

to do more, I can try to do more,” but the officer declined to allow him to do so. Simons

testified that when the tape was not running, he asked multiple times to take the test, but

the officer did not respond. He testified that he used the toilet in the cell “from a

practical standpoint.” He acknowledged that he declined to take a blood test on the

ground that he had already given a urine sample, but testified that he ultimately told the

officer he would take a urine test.

       The district court found that Simons refused chemical testing, based on his

behavior during the booking process, which included his decision to use the toilet while

the officer retrieved the cup, his smirking when the officer discovered this, the length of

time thereafter when he did not provide a usable sample, and his refusal to agree to an

alternative test. The district court found that Simons’s last-minute statement, considered

in light of his prior behavior, did not change its view. This appeal follows.

                                      DECISION

       If a law-enforcement officer has “probable cause to believe [a] person was driving,

operating, or in physical control of a motor vehicle” while impaired, the officer may

request that the driver submit to a chemical test of the person’s blood, breath, or urine.


                                             3
Minn. Stat. § 169A.51, subd. 1(a), (b) (2014). If a driver refuses to permit a test, “a test

must not be given,” Minn. Stat. § 169A.52, subd. 1 (2014), but the commissioner of

public safety shall revoke the person’s driver’s license for one year or more, id.,

subd. 3(a) (2014). The issue of whether a driver has refused to submit to chemical testing

presents a question of fact, which this court reviews for clear error. Stevens v. Comm’r of

Pub. Safety, 850 N.W.2d 717, 722 (Minn. App. 2014).

       “[R]efusal to submit to chemical testing includes 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.” State v. Ferrier, 792 N.W.2d 98,

102 (Minn. App. 2010), review denied (Minn. Mar. 15, 2011). Thus, circumstantial

evidence can establish unwillingness to take a test even without a direct statement of

unwillingness. Id. at 101. If a driver commits actions that frustrate the test, the driver is

considered to have refused testing. Busch v. Comm’r of Pub. Safety, 614 N.W.2d 256,

259–60 (Minn. App. 2000); see also Sigfrinius v. Comm’r of Pub. Safety, 378 N.W.2d

124, 127 (Minn. App. 1985) (concluding that a driver’s act of putting a breath mint in his

mouth constituted a refusal to test when he was advised several times to remove it, and

the district court found that his actions were calculated to avoid license suspension). And

“[i]f a driver expresses verbal agreement to submit to chemical testing but does not

provide an adequate sample, his or her conduct may be deemed a refusal to submit to

chemical testing.” Stevens, 850 N.W.2d at 721. In Stevens, this court upheld the district

court’s findings that a driver refused testing when she agreed to take a urine test, but

failed to provide a urine sample after being given three opportunities to do so. Id. at 722.


                                             4
       Simons points out that a driver’s confusion is a reasonable basis for test refusal,

State, Dep’t of Highways v. Beckey, 291 Minn. 483, 485, 192 N.W.2d 441, 444–45

(1971), and he argues that he was somewhat confused, but nonetheless attempted to

provide an adequate sample within a reasonable time. He points to his statement on the

recording that he “c[ould] try to do more.” The recording, however, shows that Simons

made this statement one hour after the reading of the advisory. During that hour, he

initially failed to provide a urine sample, the officer allowed him additional time to do so,

he failed again to provide a sample, and he twice declined a blood test, ultimately giving

the reason that he had already agreed to take a urine test.

       The “election of one of the alternative chemical tests . . . presupposes the driver’s

ability to supply, within a reasonable time, a sample essential to that test,” and an officer

need not “await the driver’s convenience of a different time or place.” State, Dep’t of

Highways v. Lauseng, 289 Minn. 344, 345, 183 N.W.2d 926, 927 (1971); see also

Stevens, 850 N.W.2d at 722 (citing Lauseng and stating that “neither the implied-consent

statute nor the caselaw requires the commissioner to prove that a driver had any particular

amount of time in which to provide a sample”). Here, Simons urinated in the toilet,

failed to provide a urine sample within one hour after receiving the implied-consent

advisory and 45 minutes after stating that he would take a urine test, and twice declined

an alternative test. On these facts, the officer did not act unreasonably by declining to

allow Simons additional time in which to provide a sample, and the district court did not

clearly err by finding that, under the totality of the circumstances, Simons’s actions

constituted a refusal to submit to testing. See Stevens, 850 N.W.2d at 722 (concluding


                                              5
that district court’s findings allowed an inference that the driver had a reasonable amount

of time to provide a urine sample, so that the absence of a sample was intentional).

       Affirmed.




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