                         This opinion will be unpublished and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
                                    A14-1407

                                   State of Minnesota,
                                      Respondent,

                                           vs.

                                Matthew Aaron Aldrich,
                                      Appellant.

                                  Filed June 29, 2015
                                       Affirmed
                                    Stauber, Judge

                            Hennepin County District Court
                              File No. 27-CR-13-34244

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

Michael Kolich, St. Louis Park City Attorney, Jamie Lynn Kreuser, Assistant City
Attorney, Minneapolis, Minnesota (for respondent)

Cathryn Middlebrook, Chief Appellate Public Defender, Rachel F. Bond, Assistant State
Public Defender, St. Paul, Minnesota (for appellant)

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

Rodenberg, Judge.

                        UNPUBLISHED OPINION

STAUBER, Judge

      Appellant challenges his conviction for third-degree test refusal, arguing that the

evidence was insufficient to show that he had an “actual unwillingness” to submit to
testing. Appellant also argues that the test-refusal statute violates his federal and state

due-process rights as applied to urine tests. We affirm.

                                           FACTS

       St. Louis Park police officer Aaron Trant was patrolling in the area of Minnetonka

Boulevard and Lake Street in St. Louis Park about 1:00 a.m. on August 13, 2013. He saw

a white Honda Civic make a fast turn out of a gas station and an abrupt stop at a stoplight.

Trant followed the Civic and watched it make a “wide, fast, wide right turn,” coming

within inches of a concrete median, and swerve back and forth in its lane, crossing the

fog line several times by a margin of two to three tire widths. The car came to an “abrupt

stop” at a dead end and then laboriously turned around. After watching it speed up and

slow down, Trant stopped the car, which was driven by appellant Matthew Aaron

Aldrich.

       Trant noticed that appellant’s eyes were “very bloodshot, watery,” and he could

smell a “strong odor of consumed alcoholic beverage on his breath.” Appellant told

Trant that he had had two beers. Trant described his demeanor as “very nervous and

confused.” Trant asked him to step out of the car and perform field sobriety tests.

Appellant held onto the car as he walked to the front of it; he became “very care free and

started joking.”

       Trant asked him to repeat the alphabet from C to X; despite several tries, appellant

was unable to do so and was also unable to repeat the entire alphabet. Appellant refused

to perform any other field sobriety tests and would not take a preliminary breath test

(PBT). Trant arrested him for driving while impaired (DWI), transported him to the


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police station, read him the implied-consent advisory, and asked him to take a breath test.

From 1:37 a.m. to 2:03 a.m., appellant made repeated calls to his attorney of choice, who

did not answer the phone. Trant and two other St. Louis Park police officers, Sergeant

Lewis and Sergeant Garland, offered to provide appellant with telephone books or to dial

phone numbers for him, but he refused. Trant warned appellant that he would be

considered to have refused testing if he did not make a decision within a short time. At

2:04, Trant terminated the implied-consent interview. Shortly before terminating the

implied-consent interview, Sergeant Garland offered appellant the option of taking a

urine test instead of a breath test, but appellant also refused the urine test. Appellant was

charged with test refusal and driving while impaired (DWI). A jury convicted him on

both charges and the district court sentenced him on the third-degree test refusal charge.

This appeal followed.

                                      DECISION

                                              I.

       Appellant contends that the evidence of test refusal is insufficient to support his

conviction. Under Minn. Stat. § 169A.20, subd. 2 (2012), “[i]t is a crime for any person

to refuse to submit to a chemical test of the person’s blood, breath, or urine under section

169A.51[.]” A chemical test “may be required” if a peace officer has probable cause to

believe that a person is driving while intoxicated and that person has been “lawfully

placed under arrest for a violation” of the DWI law. Minn. Stat. § 169A.51, subd. 1(b)

(2012). In order to convict a person of test refusal, the state must show that a peace

officer had “probable cause to believe the person was driving, operating, or in physical


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control of a motor vehicle while impaired.” State v. Koppi, 798 N.W.2d 358, 362 (Minn.

2011) (quotation omitted). “Probable cause under section 169A.51, subdivision 1(b)

exists when there are facts and circumstances known to the officer [that] would warrant a

prudent man in believing that the individual was driving or operating or was in physical

control of a motor vehicle while impaired.” Id.

       In addition, the state must prove beyond a reasonable doubt that the driver refused

to consent to chemical testing. Refusal can be shown in a number of ways, including a

verbal refusal, an indication of unwillingness to comply, or actions that frustrate the

testing process. State v. Ferrier, 792 N.W.2d 98, 101 (Minn. App. 2010), review denied

(Minn. Mar. 15, 2011). When a driver does not explicitly refuse to consent to chemical

testing, intent to refuse may be established by circumstantial evidence. Id.

       A reviewing court employs a two-step analysis to determine whether

circumstantial evidence is sufficient to support a conviction. State v. Sterling, 834

N.W.2d 162, 174 (Minn. 2013). The reviewing court first identifies the circumstances

proved, deferring to the jury’s acceptance and rejection of evidence in the record, and its

assessment of witness credibility. Id. at 174-75. Once the circumstances proved are

identified, the reviewing court decides “whether the circumstances proved are consistent

with guilt and inconsistent with any rational hypothesis except that of guilt.” Id.

(quotation omitted).

       The circumstances found by the jury include the following: (1) Trant had probable

cause to believe that appellant was driving while impaired based on observations of

driving conduct, appellant’s physical appearance and demeanor, the odor of alcohol,


                                              4
appellant’s admission that he had two beers, and his failure to successfully perform field

sobriety tests; (2) Trant read the implied-consent advisory twice to appellant, appellant

indicated he understood, and Trant asked him to take a breath test; (3) the advisory

includes the statement, “If the test is unreasonably delayed or if you refuse to make a

decision, you will be considered to have refused the test”; (4) appellant was permitted to

call his chosen attorney three times over a 26-minute period; (5) when appellant was

unsuccessful in contacting his attorney, Trant and his colleagues offered resources and

suggestions about how to contact that attorney or a different attorney; (6) appellant was

offered a fourth opportunity to call his attorney but declined because “she’s not picking

up”; and (7) despite this, appellant continued to refuse chemical testing without his

attorney present. The circumstances found by the jury and the reasonable inferences that

can be drawn from them are inconsistent with any rational hypothesis except guilt. See

id.

       Relying on Ferrier, appellant contends that “refusal requires a ‘volitional act’

done with an ‘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.’”

(quoting Ferrier, 792 N.W.2d at 102). This court stated, “[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.” Id. Appellant acknowledged that he would be unable to reach a

particular attorney but refused to be tested without that attorney present; this is sufficient

to show an “actual unwillingness” to submit to testing.


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                                               I.

       Appellant argues that the Minnesota test-refusal statute is an unconstitutional

denial of his federal and state due-process rights. Appellant concedes that the Minnesota

Supreme Court in State v. Bernard, 859 N.W.2d 762 (Minn. 2015), held that a

warrantless search of a defendant’s breath was permissible as a search incident to arrest.

Because a warrantless search under those circumstances does not implicate a fundamental

right and the state has a rational basis for implementing a test-refusal statute, the supreme

court further held that the statute does not violate a defendant’s substantive due-process

rights. Id. at 763.

       Nevertheless, appellant argues that his conviction must be reversed because

Bernard explicitly declined to address the constitutionality of the test-refusal statute as it

applies to urine or blood tests. See id. at 768, n.6. Appellant asserts that because he was

offered a urine test as an alternative to a breath test, Bernard does not apply to his

situation. But appellant was offered a breath test; the urine test was only offered as a last

minute option because appellant had already refused to take a breath test. See Minn. Stat.

§ 169A.51, subd. 3 (2012) (permitting peace officer to direct which type of test a person

must take, but requiring peace officer to offer an alternative test if person is first offered

blood or urine test).

       The test-refusal statute states that it is “a crime for any person to refuse to submit

to a chemical test of the person’s blood, breath, or urine.” Minn. Stat. § 169A.20, subd.

2. The evidence is sufficient to show that appellant refused to submit to a breath test, the

first option offered to him. It is not necessary for us to reach the question not answered


                                               6
in Bernard of whether that opinion’s reasoning applies as well to blood or urine testing,

when urine testing was offered only as an option after appellant refused a breath test.

       In his pro se supplemental brief, appellant argues that the evidence was

insufficient to support his conviction and that he was deprived of his right to a fair trial

because of ineffective assistance of counsel. We have thoroughly reviewed the record

and conclude that these issues are without merit. See State v. Bartylla, 755 N.W.2d 8, 22

(Minn. 2008) (stating that appellate court will not consider pro se claims on appeal that

are unsupported by citations to legal authority).

       Affirmed.




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