                         This opinion will be unpublished and
                         may not be cited except as provided by
                         Minn. Stat. § 480A.08, subd. 3 (2012).

                              STATE OF MINNESOTA
                              IN COURT OF APPEALS
                                    A13-1592

                            Jason Lee Morzenti, petitioner,
                                      Appellant,

                                          vs.

                            Commissioner of Public Safety,
                                   Respondent.

                                Filed August 18, 2014
                                      Affirmed
                                   Chutich, Judge

                           Washington County District Court
                              File No. 82-CV-12-3000

Paul P. Sarratori, Mesenbourg & Sarratori Law Offices, P.A., Coon Rapids, Minnesota
(for appellant)

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


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

Rodenberg, Judge.

                        UNPUBLISHED OPINION

CHUTICH, Judge

      Appellant Jason Morzenti challenges the district court’s order sustaining

revocation of his driver’s license, contending that he did not refuse to take a chemical

test, that any refusal was reasonable, and that the implied-consent statute is coercive.
Because the district court properly found that Morzenti refused and that his refusal was

unreasonable, and because the implied-consent statute is not coercive, we affirm.

                                        FACTS

       On May 5, 2012, at about 8:40 a.m., Trooper Steven Dauffenbach pulled over a

car that he believed was speeding on Interstate 94 in Woodbury. Trooper Dauffenbach

identified the driver of the car as Morzenti. The trooper arrested Morzenti for suspected

driving while intoxicated and brought him to the Washington County Jail.1

       At the jail, Trooper Dauffenbach read the implied-consent advisory to Morzenti

and asked Morzenti if he understood.         Morzenti responded, “No, sir.”         Trooper

Dauffenbach then read the implied-consent advisory again, after which Morzenti

responded that he understood. Morzenti stated that he wanted to contact an attorney, and

he did so.

       The trooper then asked Morzenti if he would take a chemical test, and Morzenti

responded affirmatively. Before the Intoxilyzer was ready to receive a breath sample,

Trooper Dauffenbach explained twice to Morzenti how to give a proper breath sample.

       When the Intoxilyzer began its three-minute cycle during which it could receive a

breath sample, the trooper instructed Morzenti to stand up, “wrap [his] lips” around the

mouthpiece, and blow until the trooper told him to stop. Morzenti “just stood there” and

did not provide a sample. The trooper repeated the instructions at least eight times and

cautioned Morzenti that only a short period of time remained in which to give the breath


1
  Because the stop and arrest were not at issue, the parties did not develop the record at
the implied-consent hearing.

                                            2
sample and that if he did not blow into the machine, it would be considered a refusal to

take the test.

       At some point during the three-minute cycle, Morzenti stated that he did not

understand. In response, the trooper again stated what Morzenti needed to do: take a

deep breath, “wrap [his] lips” around the mouthpiece, and blow into the tube. The

trooper also stated, “You’re not confused, you’re playing games.” According to the

trooper, Morzenti did not attempt to “blow into the machine, to lean over or even go for

the mouthpiece. He just stood there straight up and down, staring straight ahead.” After

three minutes, the Intoxilyzer timed out. Trooper Dauffenbach considered Morzenti’s

actions to be a test refusal.

       Morzenti was served with a notice and order of revocation of his driver’s license.

Morzenti petitioned the district court for judicial review of the commissioner’s

revocation.

       At the implied-consent hearing, Trooper Dauffenbach testified on behalf of the

commissioner. An audio recording of the May 5, 2012 interview was admitted into

evidence. Morzenti, who is a licensed teacher and has a master’s degree, testified on his

own behalf.

       Morzenti testified that he did not blow into the mouthpiece for the Intoxilyzer

“[b]ecause the tube wasn’t by my mouth and I didn’t want to grab the tube from the

officer because that’s aggressive.” He testified that after he told the trooper that he did

not understand, the trooper told him that he “did understand” and that he “was playing

games,” and then the trooper “repeated the instructions to blow into the tube.” Morzenti


                                            3
did not say anything further to the trooper because he “wished to be cooperative and

polite.” He acknowledged that the trooper asked him to “blow into the machine,” but

Morzenti did not do so because he “would have had to reach across the desk and pull the

tube out of the officer’s hand.”

       The district court issued an order sustaining the commissioner’s decision to revoke

Morzenti’s driving privileges.       The district court held that Morzenti’s “conduct

constituted test refusal,” finding Morzenti’s explanation for not taking the test

implausible. The district court also held that the implied-consent law is constitutional.

       This appeal followed. We stayed the appeal pending the outcome of State v.

Brooks, 838 N.W.2d 563 (Minn. 2013), cert. denied, 134 S. Ct. 1799 (2014). In January

2014, the stay was dissolved.

                                      DECISION

       A law-enforcement officer may request that a driver submit to a chemical test of

the person’s blood, breath, or urine, if the officer has “probable cause to believe the

person was driving, operating, or in physical control of a motor vehicle” while impaired.

Minn. Stat. § 169A.51, subd. 1(b) (2012). If a driver refuses to permit a test, “then a test

must not be given.” Minn. Stat. § 169A.52, subd. 1 (2012). A driver’s refusal to submit

to testing results in revocation of the person’s driver’s license for one year.             Id.,

subd. 3(a) (2012). “It is an affirmative defense for the petitioner to prove that, at the time

of the refusal, the petitioner’s refusal to permit the test was based upon reasonable

grounds.” Minn. Stat. § 169A.53, subd. 3(c) (2012).




                                              4
       Whether a driver has refused to submit to a chemical test and whether that refusal

is reasonable are questions of fact that we review for clear error. Lynch v. Comm’r of

Pub. Safety, 498 N.W.2d 37, 38–39 (Minn. App. 1993); Norman v. Comm’r of Pub.

Safety, 412 N.W.2d 22, 23 (Minn. App. 1987). “Conclusions of law may be reversed if

the district court erroneously construed the law.” Busch v. Comm’r of Pub. Safety, 614

N.W.2d 256, 258 (Minn. App. 2000).

                         I.     Whether Morzenti Refused Test

       Morzenti asserts that no proof of a refusal exists. “A driver may communicate

refusal to take a test by either words or acts,” and a driver’s “failure to comply reasonably

with the administration of the test can constitute a refusal.” Gabrick v. Comm’r of Pub.

Safety, 393 N.W.2d 23, 25 (Minn. App. 1986) (quotations omitted). If a driver’s actions

frustrate the testing process, the driver’s conduct will amount to a test refusal. Busch,

614 N.W.2d at 259; see Connolly v. Comm’r of Pub. Safety, 373 N.W.2d 352, 354 (Minn.

App. 1985) (affirming district court’s finding that driver refused testing where driver

blew around the mouthpiece of the machine and did not provide an adequate breath

sample); see also Minn. Stat. § 169A.51, subd. 5(c) (2012) (“[F]ailure of a person to

provide two separate, adequate breath samples in the proper sequence constitutes a

refusal.”).

       The evidence sufficiently supports the district court’s factual finding that Morzenti

refused to submit to the breath test. While Morzenti initially agreed to take the breath

test, he did not actually provide a breath sample by blowing into the mouthpiece. Even

though he did not verbally refuse the test, his actions are deemed a refusal. The trooper


                                             5
explained to him several times how to take the test, but Morzenti did not move his mouth

toward the mouthpiece or even reach for it. The trooper told Morzenti more than once

that if he did not take the test, it would count as a refusal. Morzenti did not make any

movement toward the mouthpiece, and the Intoxilyzer timed out after three minutes.

       Morzenti’s actions (or lack thereof) frustrated the testing process and amount to a

test refusal. “An officer is not required to wait for the driver to decide at his convenience

whether or not he will submit to testing.” Gabrick, 393 N.W.2d at 25. The district court

correctly found that Morzenti refused to submit to the test.

                         II.   Whether Refusal Was Reasonable

       Morzenti contends that, even if he did refuse to submit to a test, his refusal was

reasonable “based upon [his] expressed confusion.” A driver’s confusion may be a

reasonable basis for refusal. State, Dep’t of Highways v. Beckey, 291 Minn. 483, 485–87,

192 N.W.2d 441, 444–45 (1971) (holding appellant’s refusal reasonable where officer’s

explanation of appellant’s rights was confusing and misleading).          Refusal “may be

reasonable if the police have misled a driver into believing a refusal was reasonable or if

the police have made no attempt to explain to a confused driver his obligations.” Frost v.

Comm’r of Pub. Safety, 401 N.W.2d 454, 456 (Minn. App. 1987) (holding refusal

reasonable based on driver’s confusion as to whether he had a right to have a personal

doctor present and officer’s failure to inform driver that his statements would be

considered a refusal).

       The district court found that Morzenti’s refusal was not based on reasonable

grounds because he was not actually confused about the testing and because his


                                             6
explanation that he did not want to be perceived as aggressive was not plausible. These

findings are supported by the record. Although Morzenti told the trooper that he was

confused, the trooper clearly explained the directions many times; Morzenti did not ask

questions or try to dispel his purported confusion. The district court did not accept as

credible Morzenti’s claimed belief that it would be “aggressive” to take the mouthpiece

from the trooper.

       Contrary to Morzenti’s assertion, the trooper did take time to explain what

Morzenti needed to do to take the test. In fact, the district court found that the trooper

explained the process at least eight times.        Other than claiming that it would be

aggressive to take the mouthpiece from the trooper—a claim that the district court found

incredible—Morzenti does not explain how he was confused or why simply stating that

he was confused should be deemed reasonable grounds for refusing the test. See Maietta

v. Comm’r of Pub. Safety, 663 N.W.2d 595, 598–99 (Minn. App. 2003) (holding that

caselaw “does not impose an affirmative duty on the part of the police officer to clear up

any and all confusion on the part of a driver”), review denied (Minn. Aug. 19, 2003).

                                      III.   Coercion

       Morzenti finally argues that the implied-consent statute is coercive because it

“threatens” criminal penalties if a driver refuses to submit to testing.2 We disagree.


2
  Minnesota’s implied-consent statute requires that police officers tell drivers who are
suspected of driving while impaired that “Minnesota law requires [he or she] to take a
test” to determine whether they are “under the influence of alcohol,” that “refusal to take
a test is a crime,” and that he or she has the right to talk to an attorney, but this right is
“limited to the extent that it cannot unreasonably delay administration of the test.” Minn.
Stat. § 169A.51, subds. 1, 2 (2012).

                                              7
      Under the Minnesota Supreme Court’s decision in State v. Brooks, “a driver’s

decision to agree to take a test is not coerced simply because Minnesota has attached the

penalty of making it a crime to refuse the test.” 838 N.W.2d at 570. And in McDonnell

v. Commissioner of Public Safety, our supreme court stated that “[t]he fact that certain

individuals may face criminal charges for refusing to undergo testing in no way compels

those individuals to refuse.”   473 N.W.2d 848, 855–56 (Minn. 1991).          Therefore,

Morzenti’s argument is unpersuasive.

      Affirmed.




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