                          This opinion will be unpublished and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
                                     A16-0106

                           Robert David Stoneburner, petitioner,
                                       Appellant,

                                             vs.

                              Commissioner of Public Safety,
                                     Respondent.

                                   Filed August 8, 2016
                                         Affirmed
                                      Stauber, Judge

                               Stearns County District Court
                                 File No. 73-CV-15-4852

Robert David Stoneburner, Stoneburner Law Office, Paynesville, Minnesota (attorney
pro se)

Lori Swanson, Attorney General, Cory Beth Monnens, Assistant Attorney General,
St. Paul, Minnesota (for respondent)

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

Bratvold, Judge.

                         UNPUBLISHED OPINION

STAUBER, Judge

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

driving privileges, arguing that the police officer did not have a reasonable, articulable
suspicion of criminal activity to support an investigatory stop and that his constitutional

rights were violated by a warrantless blood test. We affirm.

                                          FACTS

       On March 21, 2015, Cold Spring-Richmond police officer Christi Hoffman, who

had more than twelve years of law-enforcement experience, was on patrol in the city of

Richmond. Hoffman was traveling eastbound when she noticed a westbound car on

Highway 23 that she estimated was traveling over the posted 50-mile-per-hour speed

limit. Hoffman activated her squad car radar unit to confirm her visual observation. The

target car was about one-half mile away at that point, which is within the radar-unit

range. The radar unit showed speeds of 62, 61, and 60, at which point she locked the

display, confirming her visual estimate of speed. Hoffman stopped the car, which was

driven by appellant Robert David Stoneburner.

       When Hoffman approached Stoneburner’s car, she saw an open beer can on the

console. Stoneburner was unable to perform a series of field sobriety tests, and a

preliminary breath test showed a 0.119 alcohol concentration. Hoffman arrested

Stoneburner and transported him to the Cold Spring police station, where she read him

the implied-consent advisory. After consulting with an attorney, Stoneburner agreed to

take a blood test, the results of which showed an alcohol concentration of greater than

0.08 percent.

       Stoneburner requested a contested implied-consent hearing solely on the issue of

whether the stop was valid. Stoneburner challenged Hoffman’s ability to make a visual

estimate of speed, but he primarily asserted that the radar device had not been properly


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calibrated because Hoffman testified that she performed only a limited internal

calibration test, and not an external calibration measurement. The district court sustained

Stoneburner’s license revocation, concluding that Hoffman had a reasonable and

articulable basis for stopping Stoneburner’s car based on her visual observation of speed.

The district court wrote, “Whether or not Officer Hoffman’s radar was precisely accurate

that night, her visual observation alone was enough to justify a stop of [Stoneburner’s]

vehicle under Minnesota law.” Stoneburner moved for amended findings or a new trial,

and, for the first time, argued that the warrantless blood draw was an unconstitutional

search under this court’s opinion in State v. Trahan, 870 N.W.2d 396 (Minn. App. 2015),

review granted (Minn. Nov. 25, 2015). The district court denied Stoneburner’s motion

without commenting on the constitutional issue raised in his motion. This appeal

followed.

                                     DECISION

                                             I.

       Both the United States and Minnesota Constitutions prohibit unreasonable

searches and seizures. U.S. Const. amend. IV; Minn. Const. art. I, § 10. But a police

officer is permitted to make a limited investigatory stop of a motor vehicle if the officer

has a “particularized and objective basis for suspecting the particular person stopped of

criminal activity.” State v. Anderson, 683 N.W.2d 818, 822-23 (Minn. 2004) (quotation

omitted). Even a minor violation of traffic law will support an investigatory stop. Wilkes

v. Comm’r of Pub. Safety, 777 N.W.2d 239, 243 (Minn. App. 2010). We review the

district court’s decision regarding an investigatory stop de novo and consider the totality


                                              3
of the circumstances to determine whether a police officer had a reasonable basis for

justifying the stop. Knapp v. Comm’r of Pub. Safety, 610 N.W.2d 625, 628 (Minn.

2000); State v. Britton, 604 N.W.2d 84, 87 (Minn. 2000). We review the district court’s

factual findings for clear error. Britton, 604 N.W.2d at 87.

       Stoneburner argues that the radar evidence did not provide a particularized and

objective basis for the stop because Hoffman did not comply with Minn. Stat. § 169.14,

subd. 10(a) (2014). This section states that “[i]n any prosecution in which the rate of

speed of a motor vehicle is relevant” radar evidence is admissible if (1) the officer has

been trained to operate the device; (2) the officer can describe how the device was set up

and operated; (3) there was only minimal interference or distortion in the surrounding

environment; and (4) the device was subject to testing by an external method that is

accurate and reliable. Id. Stoneburner argues that Hoffman did not testify about a

reliable external testing mechanism and, therefore, she had no particularized and

objective basis for the stop. But the district court based its order sustaining Stoneburner’s

license revocation primarily on Hoffman’s visual estimate of speed, not on the radar

reading. The district court relied on Hoffman’s training and her 12 years of law-

enforcement experience.

       Minnesota courts have approved the use of visual speed estimation when the

witness has an opportunity to observe the subject vehicle and has experience with

estimating the speed of moving vehicles, particularly when the witness, like Hoffman,

has years of law-enforcement experience and training. See State v. Ali, 679 N.W.2d 359,

367 (Minn. App. 2004); Frank v. Comm’r of Pub. Safety, 384 N.W.2d 574, 576 (Minn.


                                             4
App. 1986) (stating that the “factual basis for a routine traffic stop is minimal, and a

traffic violation need not even occur,” and reversing suppression of evidence after

investigatory stop based on an estimation of speed).

       Stoneburner argues that Minnesota courts have reversed speeding convictions

when the radar operator had not externally calibrated the radar unit on the date of the

offense. See, e.g., State v. Gerdes, 291 Minn. 353, 359, 191 N.W.2d 428, 432 (1971)

(setting forth standards for use of radar units that include external calibration tests). But

the issue here is not whether the state or the commissioner can prove beyond a reasonable

doubt that Stoneburner was exceeding the speed limit prior to the stop; the issue is

whether Hoffman had a “particularized and objective basis for suspecting” that

Stoneburner was violating the law. Wilkes, 777 N.W.2d at 243. “The factual basis

required to justify an investigative seizure is minimal.” State v. Klamar, 823 N.W.2d

687, 691 (Minn. App. 2012). An officer must be able to show that the stop is not a

“product of mere whim, caprice, or idle curiosity.” Id. (quotation omitted). Hoffman

testified to specific facts that led her to conclude that Stoneburner was violating the law:

she visually observed a car that appeared to be exceeding the speed limit; she had

received training in estimating the speed of moving vehicles; and her radar unit, even if

not properly calibrated, confirmed her visual observation. The district court found that

Hoffman was a credible witness. Because these facts provided a basis for a brief

investigatory stop, the district court did not err by determining that the stop was lawful.




                                              5
                                              II.

       Stoneburner challenges the constitutionality of the warrantless blood draw.

Claims not raised or argued at the implied-consent hearing in the district court will not be

considered on appeal. Weierke v. Comm’r of Pub. Safety, 578 N.W.2d 815, 816 (Minn.

App. 1998). In his petition for judicial review of his license revocation, Stoneburner

indicated that he would be challenging the warrantless blood draw. But at the hearing, he

stated on the record that there was only one issue before the court, namely “the validity of

the traffic stop.” Accordingly, the commissioner presented no evidence regarding the

advisory, Stoneburner’s consent, or the results of the blood test, which are not even part

of the record for this appeal. The district court’s order also indicates that Stoneburner

consented to the blood test and did not challenge “its validity.” Stoneburner’s motion for

amended findings challenged the district court’s conclusion that the vehicle stop was

valid, but did not identify any claimed error relating to the validity of his consent or to the

results of the blood test.

       When the issue is raised and preserved for appellate review, a driver who

consented to a blood test based on an advisory that inaccurately described the

consequences of refusal may be entitled to a remand for consideration of whether (a) that

consent was voluntary under the totality of the circumstances and (b) suppression of test

results is required in administrative proceedings. See Birchfield v. North Dakota, 136 S.

Ct. 2160, 2186 & n.9 (2016). But Stoneburner did not preserve any issue relating to his

consent to the blood test, and the existing record is clearly inadequate to decide possible

issues for the first time on appeal.


                                              6
       Stoneburner argues that he should not be deemed to have waived his

“fundamental” rights. Appellate courts “ordinarily do not consider issues raised for the

first time on appeal, even when those issues” relate to constitutional challenges, but they

may choose to do so, “when the interests of justice require their consideration and when

doing so would not work an unfair surprise on a party.” State v. Williams, 794 N.W.2d

867, 874 (Minn. 2011). Allowing Stoneburner to raise new issues on appeal would

clearly prejudice the commissioner, who had no notice of the need to present evidence on

the circumstances of Stoneburner’s consent or the blood test. Accordingly, we conclude,

as did the court in Williams, that “[t]he interests of justice do not require us to address”

this claim. See id. at 875.

       Affirmed.




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