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Forrest v. Commissioner of Public Safety

Minnesota Court of Appeals
Jun 27, 1985
366 N.W.2d 371 (Minn. Ct. App. 1985)

Summary

holding that a driver does not have a right to select the type of test

Summary of this case from SCHULZ v. COMM. OF PUB. SAF

Opinion

No. C4-84-2052.

April 23, 1985. Review Denied June 27, 1985.

Appeal from the District Court, Anoka County, Michael J. Roith, J.

Mark W. Malzahn, Anoka, for appellant.

Hubert H. Humphrey, III, Atty. Gen., Jeffrey S. Bilcik, Asst. Atty. Gen., St. Paul, for respondent.

Heard, considered, and decided by RANDALL, P.J., and SEDGWICK and HUSPENI, JJ.


OPINION


Appellant Thomas Edward Forrest appeals from an order sustaining the revocation of his driver's license. We affirm.

FACTS

Police officer Jerome Zervas arrested appellant for driving while intoxicated in violation of Minn.Stat. § 169.121 (1984). Officer Zervas read the implied consent advisory to appellant and asked him to take a breath test. Minn.Stat. § 169.123, subd. 2(c) (1984). Appellant refused to take the breath test and requested a blood test. Officer Zervas explained that he was only offering him a breath test. Appellant again refused to take it. Officer Zervas again read the implied consent advisory, allowed appellant to read it himself, and told appellant that the breath test was his only option. Appellant said he would only take a blood test. Officer Zervas then took appellant to Anoka County Jail.

ISSUE

Does a driver have a right to refuse a breath test under the implied consent law and instead insist on a blood test?

ANALYSIS

Appellant contends the language of Minn.Stat. § 169.123, subd. 2 (1984), is ambiguous because it is not clear that refusal of a test offered by a police officer constitutes a refusal of all tests. This issue was directly addressed in Carlson v. Commissioner of Public Safety, 357 N.W.2d 391 (Minn. Ct. App. 1984). The court held "appellant's refusal to take a breath test offered under the implied consent law and insistence instead on a blood test was not a reasonable refusal." Id. at 392.

DECISION

We affirm the trial court's revocation of appellant's driver's license.


Summaries of

Forrest v. Commissioner of Public Safety

Minnesota Court of Appeals
Jun 27, 1985
366 N.W.2d 371 (Minn. Ct. App. 1985)

holding that a driver does not have a right to select the type of test

Summary of this case from SCHULZ v. COMM. OF PUB. SAF

finding refusal to take breath test and insistence on blood test unreasonable

Summary of this case from State v. Athey

refusing breath test and demanding blood test was not reasonable

Summary of this case from Cook v. Commr. of Public Safety
Case details for

Forrest v. Commissioner of Public Safety

Case Details

Full title:Thomas E. FORREST, Petitioner, Appellant, v. COMMISSIONER OF PUBLIC…

Court:Minnesota Court of Appeals

Date published: Jun 27, 1985

Citations

366 N.W.2d 371 (Minn. Ct. App. 1985)

Citing Cases

State v. Athey

A refusal to submit to testing may be found where a driver imposes conditions upon the consent to a test.…

SCHULZ v. COMM. OF PUB. SAF

The driver has a right to an additional test, not an alternative test. See Forrest v. Comm'r of Pub. Safety,…