                           This opinion will be unpublished and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
                                      A14-0303

                                    State of Minnesota,
                                       Respondent,

                                            vs.

                                   Michael James Berry,
                                       Appellant.

                                  Filed January 26, 2015
                     Affirmed in part, reversed in part, and remanded
                                       Reilly, Judge

                               Ramsey County District Court
                                File No. 62SU-CR-12-3928

Lori Swanson, Attorney General, St. Paul, Minnesota; and

Heather Monnens, Geck, Duea & Olson, PLLC, White Bear Lake, Minnesota (for
respondent)

Brian P. Karalus, St. Paul, Minnesota (for appellant)

       Considered and decided by Chutich, Presiding Judge; Reilly, Judge; and

Toussaint, Judge.*




*
 Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to
Minn. Const. art. VI, § 10.
                         UNPUBLISHED OPINION

REILLY, Judge

       On appeal from his driving while impaired (DWI) convictions, appellant Michael

James Berry challenges the district court’s denial of his motion to suppress evidence of

the results of his breath test, arguing that the stop of his motorcycle was not supported by

a reasonable, particularized suspicion of criminal activity on his part. Appellant also

argues his statutory right to an additional chemical test was violated because he was not

given an opportunity to exercise that right until more than three hours had passed since

his arrest. We affirm the district court’s order denying appellant’s suppression motion,

but reverse and remand to the district court with directions to vacate one of appellant’s

DWI convictions under Minn. Stat. § 609.04 (2012).

                                         FACTS

       On August 22, 2012, at approximately 1:09 a.m., White Bear Lake police officer

Jon Sanders heard loud noises and revving engines, coming from two motorcycles

traveling northbound on White Bear Avenue.           Officer Sanders confirmed that the

violation came from these two motorcycles because there was no other traffic on the

road. Officer Sanders stopped the motorcycles in the parking lot of a nearby sports bar

because the noise was in violation of a state statute and a city ordinance relating to

muffler or motor vehicle noise, Minn. Stat. § 169.69 (2012), and White Bear Lake, Minn.

City Ordinance § 703.070 (2013).

       Officer Sanders approached the motorcycles and identified the driver of the

Honda motorcycle as a “Mr. Gaetke,” and the driver of the Harley-Davidson motorcycle


                                             2
as appellant. Both men were asked which motorcycle was making the loud noise, and

appellant admitted that the noise was coming from his “after-market motorcycle.”

Officer Sanders immediately noticed that appellant’s breath smelled of alcohol and that

his eyes were watery and bloodshot. Appellant admitted to consuming alcohol.

      Based on the officer’s training and previous experience with intoxicated people, he

believed that appellant was under the influence of alcohol and administered field sobriety

testing and a preliminary breath test. Due to appellant’s conduct and performance on

these tests, Officer Sanders believed that appellant was impaired and should not have

been driving. At approximately 1:25 a.m., Officer Sanders arrested appellant and his

friend for DWI and transported both to the White Bear Lake Police Department.

      Appellant was read the implied consent advisory at approximately 1:50 a.m.

Appellant indicated that he wanted to speak with an attorney, and an officer gave him a

telephone and directory at 1:52 a.m. At approximately 2:00 a.m., appellant advised the

officer that he had spoken to his attorney and he consented to a breath test. Appellant

provided a sample at approximately 2:10 a.m., which measured a .10 alcohol

concentration.

      The state charged appellant with two gross misdemeanor counts of third-degree

driving while intoxicated, in violation of Minn. Stat. §§ 169A.20, subd. 1(1), (5),

169A.26 (2012). Appellant filed pretrial motions seeking to suppress the evidence of his

breath test on several grounds, including a McNeely challenge, and challenges to the stop

of his motorcycle and whether his statutory right to an additional test was violated. A

Rasmussen hearing was held on June 18, 2013, at which the police officer, the


                                            3
correctional officer, and appellant testified. In an August 9, 2013 order, the district court

denied appellant’s suppression motions.

       Appellant thereafter waived his right to a jury trial and agreed to a stipulated facts

trial pursuant to Minn. R. Crim. P. 26.01, subd. 4, previously known as a Lothenbach

proceeding.1

       The officer testified that he transported appellant and his friend to the Ramsey

County Law Enforcement Center (LEC) in St. Paul and booked appellant into jail at

approximately 3:30 a.m. The officer believed that appellant asked for an additional test

in the squad car on the way to jail, and that he told jail staff that appellant was requesting

an additional test as he was being booked.

       A correctional officer at the Ramsey County jail testified that he was on duty the

morning that appellant was booked. The correctional officer confirmed that Officer

Sanders informed him that appellant had requested an additional test. The correctional

officer testified that when someone requests an additional test, his practice is to give them

access to the phone as soon as he is done booking them. Appellant received a phone at

4:05 a.m., and the correctional officer dialed the number for an independent testing




1
  State v. Lothenbach, 296 N.W.2d 854 (Minn. 1980). In Lothenbach, the supreme court
sanctioned a procedure whereby a defendant pleads not guilty, waives his right to a jury
trial, and stipulates to the facts in the prosecutor’s case. Id. at 857-58. “This procedure
allows a defendant to appeal a pretrial issue when the material facts are not
disputed.” State v. Knoll, 739 N.W.2d 919, 921 (Minn. App. 2007).



                                              4
company. The correctional officer testified that, according to his report, appellant was

able to reach someone at the testing company.

         Appellant claimed that he asked for an additional test while he was still at the

White Bear Lake Police Department, after he submitted to the breath test. Appellant

testified that his attorney had advised him to ask for an additional test. No second test

was ever administered, however, and appellant did not explain why he did not obtain a

second test.

          The district court filed an order on December 24, 2013, making findings and

conclusions, and adjudicating appellant guilty of both counts. According to the warrant

of commitment and the district court register of actions, appellant was convicted of both

third-degree DWI counts and was given concurrent sentences on each conviction. This

appeal follows.

                                     DECISION

                                            I.

         When reviewing a district court’s decision on a motion to suppress evidence, we

independently review the facts and determine whether, as a matter of law, the district

court erred by not suppressing the evidence. State v. Harris, 590 N.W.2d 90, 98 (Minn.

1999).

         An officer conducting an investigatory motor vehicle stop must be able to

articulate a particular, objective basis for suspecting the person stopped of criminal

activity. State v. George, 557 N.W.2d 575, 578 (Minn. 1997). The officer’s suspicion

must be more than a hunch, but even an insignificant traffic or equipment violation can


                                             5
be sufficient to establish an objective basis for a stop. Id.; see also State v. Johnson, 444

N.W.2d 824, 825-26 (Minn. 1989). Minnesota requires all vehicles to be “equipped with

a muffler in good working order,” and this requirement is adopted by a White Bear Lake

City ordinance. See Minn. Stat. § 169.69 (2012); White Bear Lake City Ordinance,

Minn. § 703.070, subd. 3.B. An officer’s suspicion that a muffler is faulty has been held

to be a valid reason to initiate a stop. See, e.g., State v. Beardemphl, 674 N.W.2d 430,

432 (Minn. App. 2004) (upholding search initiated due to loud muffler); State v. Pierce,

347 N.W.2d 829, 833 (Minn. App. 1984) (affirming conviction stemming from stop

prompted by noisy muffler).

       Appellant argues that the stop of his motorcycle violated the Fourth Amendment

because the officer lacked reasonable suspicion to conduct a stop when it was clear that

he did not know if the loud exhaust was coming from appellant’s motorcycle or from the

other motorcycle. Appellant asserts that without an individualized suspicion of criminal

activity on appellant’s part, the officer had “nothing more than a gambler’s hunch.”

       As support for his position, appellant cites Ascher v. Comm’r of Pub. Safety, a

supreme court case declaring unconstitutional the use of temporary roadblocks to stop

large numbers of drivers in the hope of discovering evidence of alcohol-impaired driving.

519 N.W.2d 183, 187 (Minn. 1994).          In Ascher, the supreme court held that such

roadblocks violated the Minnesota Constitution because the state failed to articulate a

persuasive reason for dispensing with the individualized suspicion requirement. Id.

       The state counters that the district court properly held that reasonable, articulable

suspicion of criminal activity supported the stop of appellant’s motorcycle. We agree.


                                             6
“The factual basis required to support a stop is minimal, and an actual violation is not

necessary.” State v. Haataja, 611 N.W.2d 353, 354 (Minn. App. 2000), review denied

(Minn. July 25, 2000). The district court must “simply analyze the testimony of the

officer and determine whether, as a matter of law, his observations provided an adequate

basis for the stop.” Berge v. Comm’r of Pub. Safety, 374 N.W.2d 730, 732 (Minn. 1985).

The officer need not actually observe a violation and “suspicion is all that is required, if

the officer can sufficiently articulate the factual basis for his suspicion.” Id. at 733.

       Here, Officer Sanders testified that he heard “loud motorcycle revving engines,”

and “crackling and popping noises that were very loud,” and that there was no other

traffic on the road. The district court upheld the stop as lawful, concluding that Sanders

“articulated a reasonable suspicion of illegal activity, i.e., the officer’s belief that

defendant may have been riding a motorcycle that violated the city’s noise ordinance.”

       We conclude that the basis for the stop in this case may have been “minimal,” but

the officer did testify that he stopped the motorcycles after hearing a violation of the

traffic laws and the district court credited the officer’s testimony. The officer’s belief

that one of two motorcycles was violating the noise laws is reasonable and sufficient to

make the suspicion “individualized,” in that the officer was not conducting a roadblock or

stopping a large number of vehicles to see if one was violating the law. Under these

circumstances, the district court did not err in holding the stop was lawful and supported

by a reasonable, articulable suspicion of criminal activity.




                                               7
                                              II.

       Appellant next argues that he was denied his statutory right to an additional test

because the officers hampered his timely effort to obtain an independent test when he was

not given an opportunity to obtain a test for several hours. In his brief to this court,

appellant states that the “relevant facts are not disputed.” At oral arguments, however,

appellant’s counsel questioned whether appellant requested an additional test in the squad

car on the way to jail, as the testimony of Officer Sanders suggested and the district court

found, or whether appellant first asked for an additional test at the White Bear Lake

Police Department after administration of the breath test.

       A person has a limited right to an additional test under Minn. Stat. § 169A.51,

subd. 7(b) (2012). The issue on appeal is whether the officer unlawfully prevented or

denied the right to obtain an additional chemical test. See Haveri v. Comm’r of Pub.

Safety, 552 N.W.2d 762, 765 (Minn. App. 1996), review denied (Minn. Oct. 29, 1996).

An officer is not required to inform a driver of the right to an additional test. Schulz v.

Comm’r of Pub. Safety, 760 N.W.2d 331, 334 (Minn. App. 2009). Other than providing a

telephone, an officer has no obligation to assist a driver to obtain an additional test. Id.

       Appellant is essentially claiming that the delay in providing him access to a

telephone violated his statutory right to an additional test. An officer gave appellant

access to a telephone but for some reason he chose to not obtain an additional test. Had

appellant submitted to an additional test, he still could have attempted to present

retrograde extrapolation to prove his alcohol concentration at a time prior to testing. See

State v. Jensen, 482 N.W.2d 238, 239-40 (Minn. App. 1992) (upholding admission of


                                              8
expert testimony using retrograde extrapolation to determine alcohol concentration),

review denied (Minn. May 15, 1992). Moreover, any delay that did occur between

appellant’s breath test at the White Bear Lake Police Department and his arrival and

booking at the Ramsey County jail was caused not by the officer’s deliberate delay, but

by the necessity to complete testing and paperwork for appellant and his friend. Thus,

the district court did not err in finding that appellant’s right to an alternative test was

vindicated.

                                            III.

       Finally, although this issue is not raised by appellant, examination of the record

establishes that he was improperly convicted of two counts of third-degree DWI, in

violation of Minn. Stat. § 609.04 (2012). According to the warrant of commitment and

the district court register of actions, appellant was convicted of both third-degree DWI

counts and was given concurrent sentences on each conviction. Similarly, in State v.

Clark, the defendant was convicted of a number of offenses, including both driving under

the influence and driving with an alcohol concentration of .10 or more. 486 N.W.2d 166,

167 (Minn. App. 1992). On appeal, he raised issues involving trial errors and also argued

that his sentence for fleeing a peace officer should be vacated because that offense arose

out of the same behavioral incident as his conviction of third-degree burglary. Id. We

also identified and chose to address an issue not raised by the defendant involving the

fact that he had received multiple convictions under different sections of the DWI statute,

in violation of Minn. Stat. § 609.04. Id. at 170-71.




                                             9
       In this case, appellant was convicted of two counts of third-degree DWI, in

violation of Minn. Stat. §§ 169A.20, subds. 1(1) (driving under the influence of alcohol),

(5) (operating a motor vehicle with an alcohol concentration of .08 or more within two

hours of driving), 169A.26 (defining third-degree DWI). The district court sentenced

appellant to concurrent sentences for each conviction, according to the warrant of

commitment.      This sentencing is in violation of section 609.04, which prohibits

‘“multiple convictions under different sections of a criminal statute for acts committed

during a single behavioral incident.’”      Clark, 486 N.W.2d at 170 (quoting State v.

Jackson, 363 N.W.2d 758, 760 (Minn. 1985)). We therefore reverse and remand to the

district court, with directions to vacate one of appellant’s convictions.

       Affirmed in part, reversed in part, and remanded.




                                             10
